Opinion
v-11.
Decided April 16, 2010.
Elizabeth Ann Ratchford, Esq., Attorney for Petitioner.
Michael D. Schmitt, Esq., Attorney for Respondent.
Georgia B. H., Casie L. Ponticello, Esq., Attorney for Respondent.
Latoyria B., Maroun G. Ajaka, Esq, Guardian Ad Litem for Respondent.
Latoyria B., Alison Bates Dollinger, Esq., Attorney for the child, Darrius B.
Leonard E., hereafter referred to as Father, and Latoyria B., hereafter referred to as Mother, are the parents of one child, Darrius B., d.o.b. February 12, 2008, hereafter referred to as Child, the issue of their non-marital union. The Order of the Monroe County Family Court dated July 7, 2008, awarded joint custody of the child between Mother and maternal Great-Grandmother, Georgia B. H., with primary residence to the maternal Great-Grandmother and with monitored visitation to Mother. Father was not part of the Order.
On October 15, 2009, Father filed the instant custody Petition against Mother and maternal Great-Grandmother. Maternal Great-Grandmother did not file a cross petition. Mother was in agreement with the Petition; however, the maternal Great-Grandmother was opposed to the Petition. The Court found both personal and subject matter jurisdiction and conducted a fact finding proceeding and finds as follows.
FINDINGS OF FACT
Father testified that he was born on December 5, 1977 and has lived at least one year at his current address located in Rochester, New York 14621. He has been employed for the last four years in security and earns $13.50 per hour. Father works over thirty hours weekly. He is provided medical insurance and could not put his child on. Father previously worked as a security guard for Rochester Gas and Electric, George Eastman House, Eastman Kodak Company, Xerox Corporation and Chase Bank. He has a license and is New York State Certified with over 16 hours. Prior to this position Father was a camp counselor at the Southwest Community Center for four years, involved in Pathways to Peace, which is a gang intervention program, and Black Father's Association. He has attended health fairs, school camps and field trips.
Father testified that he filed a custody Petition because he saw Mother in the summer of 2009 and she told him that she had a baby and the baby could be his. Father called the maternal Great-Grandmother immediately and visited the child the next day.
On October 15, 2009, Mr. E. learned that he was the father of the child and on that same day he filed a custody Petition. The Court took judicial notice of the Order of Filiation, docket number x-xxxxx-09.
Father testified that he lived alone, had his own vehicle, car seat, crib, clothes and toys for the child. Since the court proceedings, Father has visitation with the child from Wednesdays at 10:00 a.m. to Saturdays at 10:00 a.m. Father testified that he is involved in numerous activities with the child and is the primary care taker of the child, including bathing him, giving him breakfast, lunch and dinner, playing with him, taking him to the parks, museums and sledding. Father is requesting custody and is willing to use the maternal Great-Grandmother or Mother for daycare. Father stated that he will agree to supervised visitation to Mother because he wants Mother to be a part of the child's life. Father's current apartment is a one bedroom with a kitchen, living room, bed and crib.
Also, Father testified that he is in a vocational program for a certified nursing assistant at the REOC and is scheduled to graduate on May 14, 2010. He will then try to become a licensed LPN.
Maternal Great-Grandmother has not allowed Father to take the child to the doctor. The child visits a speech pathologist weekly, is anemic, has asthma and needs a pump. The child takes medication twice each day and the maternal Great-Grandmother would not tell Father the name of the pediatrician. Father works four days weekly, two days and two nights. He would set up day care if he got custody. Also, Father calls the maternal Great-Grandmother about the child when he does not have him. Father has a good relationship with the child's Mother and maternal Great-Grandmother.
In addition, Father testified that he has three other children with whom he visits and has good relationships with their mothers. The child's siblings have a good relationship with the child. There is a child support Order which he is current on.
On cross examination, Father testified that he would be agreeable to have joint custody with regular supervised visitation with Mother and that he would notify her of all important events and help with transportation. He has no current plans to move more than 30 miles outside the Rochester area.
The maternal Great-Grandmother testified that she has lived at the same residence in Rochester, New York for 14 years, owns her home and lives with the child. She brought the child home from the hospital and Mother wanted the maternal Great-Grandmother to have custody.
Furthermore, the maternal Great-Grandmother testified that Mother was confined to the Rochester Psychiatric Center on numerous occasions and she helped Mother with her medications. Mother initially did not tell the maternal Great-Grandmother who the Father was. Mother never lived with the maternal Great-Grandmother after the child was born.
The child is being treated by a speech pathologist weekly in Bright Star at the recommendation of the pediatrician. Father was late to these appointments on at least four occasions. The maternal Great-Grandmother and Father have a civil relationship although at times it has been tested. Maternal Great-Grandmother confirmed the visitation times of Father as Wednesdays from 10:00 a.m. to Saturday at 10:00 a.m. Sometimes Father picks up the child late.
Maternal Great-Grandmother wants custody of the child until he is old enough to talk, take the child to church and be respectable. Maternal Great-Grandmother testified that the Father has a good relationship with the child and that he loves the child. Mother visits on the weekends. If maternal Great-Grandmother is not granted custody of the child, she wants visitation on Sunday and would watch the child when Father is at work.
Also, maternal Great-Grandmother testified that the child is anemic and needs medication twice each day and that the child is happy to see Father when he comes. There is a December 15, 2009 Order which orders monitored visitation to Mother and maternal Great-Grandmother testified that she did leave the child with Mother unsupervised for approximately 30 minutes.
There was testimony from Kia B., the mother of Father's other child. She testified that Father's last visit with their son, Massiah, was approximately February 2010 and visits were inconsistent. Although there was an Order granting Father alternate weekend visitation, in the last six months Father did not exercise any weekend visitation. The child was scratched accidentally and Father called mother about the scratch. The child did not receive stitches.
Finally, Mother testified that she was living with her own mother, Linda H., for the past two months. When she became pregnant with the child she was not sure who the Father was. It was not until last summer that Mother had a telephone conversation with Father stating that she was pregnant, but was not sure who the father was. In a second conversation Mother had with Father last summer, she testified the baby could be his, upon which Father filed paternity and custody petitions.
CONCLUSIONS OF LAW
In Bennett v Jeffreys, 40 NY2d 543 (1976), the Court held that a "state may not deprive a parent of custody of a child, absent surrender, abandonment, persistent neglect, unfitness or other like extraordinary circumstances; if any such extraordinary circumstances are present, disposition of custody is then influenced or controlled by what is in the best interest of the child". The Court opined that the prolonged separation of the mother from a child, combined with mother's lack of established household of her own, unwed state, and attachment of the child to her custodian constituted extraordinary circumstances.
In the case at bar, there was not a prolonged separation between the Father and child. Both Father and Mother testified that Father was unaware the child was his, but when he learned the child could be his, he immediately filed a custody Petition. The Father has an established household of his own.
In the Matter of Johnson v Streich-McConnell , 66 AD3d 1526 (4th Dept, 2009), the Court held that Mother's medical records established that she had a history of mental health issues which she failed to address adequately. Consequently, extraordinary circumstances were established.
In the instant case, there was no testimony or evidence that Father had mental health issues.
In the Matter of Brault v Smugorzewski , 68 AD3d 1819 (4th Dept, 2009), the Court held that there were extraordinary circumstances. One factor was a failure on the part of the Mother to address the special needs of the child.
In the case at bar, Father andmaternal Great-Grandmother testified as to the child's special needs, which Father addressed repeatedly.
In the Matter of Jenny L. S., v Nicole M, 39 AD3d 1215 (4th Dept, 2007), the Court held that "a finding of extraordinary circumstances is rare and the circumstances must be such that they drastically affect the welfare of the child. The courts and the law are powerless to supplant parents, except for grievous cause or necessity or gross misconduct. A parent will not be deprived of his right to custody merely because a court or social agency believes it can decide more wisely than the parent or believes it has found someone to better to raise the child". The Mother voluntarily separated from her child for nine months when she relocated to New York from Virginia.
In the case at bar, there was no voluntary separation. Father was unaware the child was his. When Father learned the child was his, he immediately filed a custody Petition as was testified by Father and Mother. He maintained regular visitation with the child.
In the Matter of Michelle M. v Thomas F. , 42 AD3d 882 (4th Dept, 2007) the Court held that the aunt failed to establish extraordinary circumstances. The Father agreed that the aunt should have physical custody while he was in rehabilitation for substance abuse and that alone was insufficient to deprive him of custody. There was no indication in the record that Father abandoned the child, was separated from the child for a prolonged period, that he had an unstable lifestyle, lacked an established household, associated with criminals, was convicted of any crime against children, was found to have neglected the child, or pay child support voluntarily.
In the instant case, there was no testimony or evidence that Father had a substance abuse problem, required rehabilitation, that he abandoned the child, that he was separated from the child for a prolonged period, that he had an unstable lifestyle, lacked an established household, associated with criminals, was convicted of any crime against children, was found to have neglected the child or pay child support voluntarily.
In Ruggieri v Bryan , 23 AD3d 991 (4th Dept, 2005), one of the factors the Court considered was that the Mother voluntarily surrendered physical custody of the child to
Respondent, she took no legal steps to regain custody of her child for approximately five years after Respondent obtained custody of him.
In the case at bar, Father did not voluntarily surrender physical custody of the child and immediately took legal steps to gain custody once he learned the child was his.
In Parker v Tompkins, 273 AD2d 890 (4th Dept, 2000), the Court held that one of the factors was the psychological damage likely to be incurred by the child in the event that she was separated from her aunt and half brother.
In the instant case, there was no testimony or evidence of any psychological damage likely to be incurred by the child in the event he was separated from his maternal Great-Grandmother.
CONCLUSION
The Court finds that the maternal Great-Grandmother has not established extraordinary circumstances to retain custody of the child. After hearing all the testimony, reviewing the admitted exhibits, and upon the recommendation of the attorney for the child in the best interests of the child. There is no necessity to review the best interests between maternal Great-Grandmother and Father, since extraordinary circumstances were not established.
Father and Mother agreed prior to the hearing that there would be joint custody with primary residence to Father and rights of temporary supervised physical residence to Mother.
Pursuant to Chapter 595 of the Laws of 2008 the Court has searched the required databases and has notified parties and counsel of said results and has considered the results of that search in making this determination.
THEREFORE, it is
ORDERED, that Father, Leonard E., and Mother, Latoyria B., shall have joint custody of the child, Darrius B., d.o.b. February 12, 2008, it is further
ORDERED, that Father shall have primary physical residence of the child, it is further
ORDERED, that Mother shall have rights of supervised temporary physical residence of the child, times as agreed between the parties, it is further
ORDERED, that the visitation shall be supervised by the maternal Great-Grandmother, Georgia B. H., or any other person that the parties can mutually agree upon, it is further
ORDERED, that Mother shall follow up with her mental health treatment as recommended and take any medication prescribed by her physician, it is further
ORDERED, that each party shall notify the other of their current address and telephone number, it is further
ORDERED, that the parties shall have reasonable telephone access to the child at reasonable times and for reasonable periods of time, it is further
ORDERED, that the parties shall inform each other of any accident or illness of the child, other than a common cold, it is further
ORDERED, that the parties shall have direct access to all medical and school records of the child and be able to speak with professionals regarding same, and it is further
ORDERED, that the parties shall notify each other of all important activities in the child's life.
Signed this day of, 2010 at Rochester, New York.