Opinion
No. V–00406–12/17E.
07-07-2017
In the Matter of QING XIE, a/k/a/ Coco Qing Xie, Petitioner, v. Mohammad Reza DAEISADEGHI, Respondent.
Herbert Steinberg, for Petitioner. Harris Kantor, for Respondent.
Herbert Steinberg, for Petitioner.
Harris Kantor, for Respondent.
ELISA S. KOENDERMAN, J.
Petitioner, Qing Xie ["Mother"], moves for modification of a so-ordered stipulation of settlement which granted her and Respondent, Mohammad Reza Daeisadeghi ["Father"] joint legal custody of their child, Naveed Daeisadeghi. Father moves to dismiss Mother's petition for failure to state a cause of action. In determining the motion, the court considered Respondent's Motion to Dismiss; Petitioner's Affirmation in Opposition; Respondent's Affidavit in Reply; the Attorney for the Child's Affirmation in Opposition; and Respondent's Affirmation in Reply (see CPLR 2219 ). Because the affidavits in opposition to the motion remedy any defects in the petition, the Father's motion to dismiss is denied.
Mother filed the verified petition and the attached so-ordered stipulation of settlement on February 28, 2017. The so-ordered stipulation awards joint legal custody of the child to Mother and Father, with final decision-making authority on educational issues to Mother and final decision-making authority on medical issues to Father. All other decisions for the child, including but not limited to travel, childcare, extracurricular activities, psychotherapy and employment shall be made by both parents. If the parents are unable to agree, they must meet with a designated parent coordinator to attempt to resolve the disagreement.
Mother's petition states that Father "has violated this court's order and is constantly acting in a manner that is not in the child's best interest." Mother alleges that Father has "intentionally [refused] to meet and cooperate with the parent coordinator and has stated that he no longer will meet with her" in violation of a material term of the stipulation of settlement. She claims that Father "has displayed significant anger toward [Mother and] the parent coordinator that is escalating and out of control." Finally, Mother asserts that "the parent coordinator has expressed the opinion that [Father needs] therapeutic intervention and that [Mother's] concerns and fears in interacting with [Father] are valid ." She adds that the parent coordinator's opinion is that court intervention now is "necessary." Accordingly, Mother asks the court to grant her sole custody of the child.
Father moves to dismiss the petition because it fails to allege a change of circumstances warranting a modification of custody. He argues that the allegation that he will not meet or cooperate with the parent coordinator is insufficient. He accuses the parent coordinator of "overstepping the bounds" of the stipulation which clearly defines her role. He states that he has "told [Mother] that he is willing to work with her and to choose another parent coordinator." He contends that replacing the parent coordinator with one "who will respect the role" defined in the stipulation and "refrain from acting as judge and jury" will resolve the issue. Father admits that he is angry at Mother but asserts that is because she damaged his car. Father further states that he and Mother "do not have joint decision-making" but "each have their own sphere of influence." He alleges that "there is zero evidence that the parties are not making decisions appropriately in their respective spheres." Father maintains that he and Mother still would disagree about parental access even if one or the other had sole custody. He asserts that because "there is no new major issue here regarding parental access or decision-making," joint custody remains in the child's best interests.
Mother opposes Father's motion to dismiss. Mother attests that she and Father "cannot get along on any issues and as such, the joint custody situation is no longer tenable." She alleges that Father "blames everything on the parent coordinator and refuses to take any responsibility." Mother states that Father has a "tortured interpretation" of the parent coordinator's role. She contends that the parent coordinator must "listen to our issues" and "come up with solutions to avoid conflict." Accordingly, she asserts that the parent coordinator is empowered to make decisions to "resolve issues" and thereby "avoid court intervention." She claims that Father "will never agree to anything unless he feels his position is completely validated and followed." She reiterates that "the situation is [antithetical] to allowing joint custody to continue."
Mother additionally declares that she is "very afraid of Father" since his "anger and accusations have reached a dangerous level." She states that Father has made false allegations against her and that she has sought an order of protection against him. She describes that "the conflict between [them] is palpable."
The attorney for the child also opposes Father's motion, contending that the parties "are unable to communicate and cooperate [to] address the child's best interests" and therefore "are unsuited for joint legal custody." The attorney opines that while replacing the parent coordinator "may improve the situation temporarily," it ultimately will not prevent the parties from seeking court intervention "to resolve disputes regarding every detail of [the child's] life." For example, the attorney states that the parties were unable to agree on allowing Mother to have a dinner visit with the child during Father's parenting time on Chinese New Year. The attorney further alleges that the child is exhibiting signs of distress because of the parties' acrimonious relationship. Specifically, the attorney states that the child's Individual Education Program now includes in-school counseling to help "regulate his emotions" and provide "strategies for managing his frustration and anger rather than resorting to physical aggression." Because "the parties are unable to set aside their differences and cooperate" for the child's sake, the attorney asks the court to deny Father's motion and to decide after a hearing whether to grant Mother's petition for sole custody or to expand either parent's final decision-making authority.
Upon a motion to dismiss for failure to state a cause of action (see CPLR 3211[a][7] ), the court must construe the petition liberally, deem the facts alleged to be true and draw all inferences favorable to the petitioner (see e.g., Cadet–Duval v. Gursim Holding Inc., 147 AD3d 718, 719 [2d Dept 2017] [internal citations omitted] ). Additionally, the court may consider the affidavits in response to the motion to remedy any defects in the petition (see Rovello v. Orofino Realty Co., Inc., 40 N.Y.2d 633, 635–636 [1976] ; Cadet–Duval, 147 AD3d at 719; Kelly v. Bank of Buffalo, 32 A.D.2d 875 [4th Dept 1969] ). Indeed, "affidavits may be used freely to preserve inartfully pleaded, but potentially meritorious claims" ( Rovello, 40 N.Y.2d at 636 ). This is because "modern pleading rules are designed to focus attention on whether the pleader has a cause of action rather than on whether he has properly stated one" (id.[internal citations omitted]; see also Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275 [1977] ; Cash on the Spot v. Camia, 144 AD3d 961, 963 [2d Dept 2016] ).
Here, Mother's petition contains conclusory allegations essentially founded upon the purported fact that Father will not meet or cooperate with the parent coordinator. On its face, the petition appears insufficient to merit the change of custody it seeks. Nevertheless, the affidavits in opposition to the instant motion contain supplemental factual allegations which amplify those in the petition. Mother states that she and Father are unable to agree on anything because he will not compromise; that she is afraid of Father because of his escalating anger towards her; and that the parent coordinator is unable to mediate because Father refuses to accept her authority. The attorney for the child confirms that Mother and Father are unable to share decision-making even on the smallest issue and alleges that the child is displaying aggression in school because of the stress of his parents' discord.
For the court to modify an existing custody award, the totality of the circumstances must warrant a change of custody in the best interests of the child (see e.g., Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 95–96 [1982] ; Dorsa v. Dorsa, 90 AD3d 1046, 1046–1047 [2d Dept 2011] ; Patsy M.C. v. Lorna W.C., 165 A.D.2d 813, 814 [2d Dept 1990] ). To maintain stability for the child, the court should accord priority to an existing custody award but is not bound by it (see Eschbach v. Eschbach, 56 N.Y.2d 167, 171 [1982] ; Friederwitzer, 55 N.Y.2d at 94–95 ; Patsy M.C., 165 A.D.2d at 814 ). Additionally, the court should give less weight to an award pursuant to an uncontested stipulation than a judgment after a plenary trial (see Eschbach, 56 N.Y.2d at 172 ; Freiderwitzer, 55 N.Y.2d at 95 ). While "some particular, sudden or unusual event" need not have occurred ( Friederwitzer, 55 N.Y.2d at 95 ), circumstances must have changed sufficiently since the prior award to justify modification of custody (see Rivera v. Fowler, 112 AD3d 835, 836 [2d Dept 2013] ).
Such a change in circumstances exists where the parties' relationship has deteriorated to the extent that they are unable to meaningfully communicate or cooperate for the sake of their child (see Andrea C. v. David B., 146 AD3d 1104, 1106 [2d Dept 2017] ; Zahuranec v. Zahuranec, 132 AD3d 1175, 1176 [3rd Dept 2015] ; Paul A. v. Shaundell LL, 117 AD3d 1346, 1348 [3rd Dept 2014] ; Sonley v. Sonley, 115 AD3d 1071, 1072 [3rd Dept 2014] ). Joint custody, which gives both parents "shared responsibility for and control of a child's upbringing," is appropriate between "relatively stable, amicable parents [who behave] in a mature and civilized fashion" ( Lee v. Fitts, 147 AD3d 1058, 1059 [2d Dept 2017] [internal citations omitted]; cf. Johanys M. v. Eddy A, 115 AD3d 460, 461 [1st Dept 2014] [joint legal custody found in child's best interests where there was no evidence that parties' relationship was characterized by acrimony or distrust] ). Conversely, where the parties are so antagonistic and uncivil to each other that they cannot work together, joint legal custody may not feasible (see id.; Andrea C., 146 AD3d at 1106 ; Sonley, 115 AD3d at 1072 ). Indeed, such parties are unable to share decision-making for their child (see Falcon v. Batista, 148 AD3d 698 [2d Dept 2017] [court properly awarded joint legal custody but with final decision making to mother]; cf. Tatum v. Simmons, 133 AD3d 550, 551 [1st Dept 2015] [court properly awarded shared legal custody with each party having final authority over separate decision-making zones] ).
Here, although each party has final decision-making authority over one major issue for the child, they share decision-making over all other issues, both major and minor alike. In sum, Mother alleges, and the attorney for the child concurs, that she and Father cannot agree on any matter which requires their consensus. When accepted as true and viewed in the light most favorable to her, Mother's allegations indicate that her ability to co-parent with Father has eroded to a point that is harmful to the child (see O'Connor v. Klotz, 124 A.D.2d 666, 666–667 [2d Dept 2015] ). Accordingly, Mother has sufficiently pleaded a change of circumstances which would warrant a modification of custody. Because she therefore has a cause of action, Father's motion to dismiss her petition is denied.
The foregoing constitutes the decision and order of this Court.