Decided May 25, 2006.
MALLOW, KONSTAM HAGER, By: Daniel Schwartz, Esq., New York, NY, Attorneys for Plaintiff.
COFFINAS LUSTHAUS, By: Maria Coffinas, Esq., Brooklyn, NY, Attorney for Defendant.
Upon the foregoing papers, plaintiff Perla Malka Neuwirth moves, by order to show cause, for an order modifying the judgment of divorce in the instant matrimonial action to award her sole custody of the parties' infant daughter. Defendant Abraham Neuwirth opposes the instant motion on the ground that plaintiff has failed to demonstrate the existence of "changed circumstances" sufficient to warrant modification of the joint custody provision contained within the subject judgment of divorce.
In the original order to show cause plaintiff also moved for an order vacating the May, 13, 2004 Stipulation of Settlement between the parties, directing defendant to pay child support in an amount to be resolved by the court and granting plaintiff leave to conduct discovery into the parties' marital property for the purpose of determining equitable distribution. Plaintiff also sought $5,800.00 in alleged child support arrears. The portion of plaintiff's motion seeking vacatur of the subject stipulation was voluntarily withdrawn by plaintiff as such relief is more properly sought in a plenary action ( see Bergen v. Bergen, 299 AD2d 308 ). Those portions of plaintiff's request for relief with regard to child support were resolved by issuance of a short form order, dated February 15, 2006, pursuant to which the parties consented to set aside those articles of the subject stipulation concerning child support and related expenses and the matter was referred to a Judicial Hearing Officer for a de novo child support determination.
The parties were married on June 24, 1996. On or about May 13, 2004, subsequent to negotiations undertaken in the context of a Beth Din proceeding (religious court), the parties entered into a Stipulation of Settlement (the Stipulation) pursuant to which the parties agreed to settle all issues with regard to the dissolution of their marriage and custody of their child. Custody was resolved as follows:
The parties to have joint custody, with the wife to have physical custody at her residence, of the infant issue of the marriage, to wit, . . . [name omitted], born . . . [date omitted, 1997]. The child shall live and be brought up in a caring devoted manner.
The Stipulation also included a detailed schedule concerning the conditions, time and duration for the child's visits with defendant, as well as provisions governing her education and the conduct of the parties with respect to the maintenance and encouragement of her love and respect for each parent. The terms of the Stipulation were incorporated but not merged with a Judgment of Divorce dated November 29, 2004. On or about June 22, 2005, plaintiff brought the instant motion seeking sole custody of the child.
In support of her motion, plaintiff avers that the joint custody provision contained in the judgment of divorce should be modified to award her sole custody because "defendant is wholly incapable of taking care of my daughter, and in fact never has." She alleges that defendant has created "conflicts" by enrolling the child in unspecified "extracurricular activities." She also claims that defendant is consistently late in returning the child from visits and gave her an inappropriately large monetary gift of $100.00 for the Purim holiday. Defendant also allegedly requested that the child seek permission from plaintiff to spend the first half of Passover with him. Plaintiff also submits an alleged "written example" of defendant's alleged attempts to "bully and control" plaintiff since the divorce. The document is dated September 23, 2004 — approximately two months prior to the date of the judgment of divorce — and consists of a list of "demands" which appears to refer to the child's visitation with defendant as per the terms of the Stipulation. As a result of these alleged incidents, as well as for "other reasons," which are not specified, plaintiff maintains that it is in the child's best interests that the current joint custody arrangement be modified to award plaintiff sole custody. Although not included in plaintiff's affidavit in support of the instant motion, plaintiff's attorney alleges, in an accompanying memorandum of law, that plaintiff and defendant also were recently involved in a dispute regarding which school the child would attend.
In opposition to the motion, defendant argues that the parties agreed to the joint custody arrangement contained in the judgment of divorce and plaintiff has failed to demonstrate the existence of "changed circumstances" which would warrant a modification of said arrangement. Defendant also contends that it is important for him to maintain joint custody to ensure that the child is raised as an Chasidic Jew. With regard to conflicts or communication difficulties between the parties, defendant alleges that plaintiff violated Chasidic tradition by painting the child's fingernails with nail polish in an attempt to "annoy" defendant. Defendant also avers that plaintiff has "indicated" to him that she does not agree that it is important that the child receives an Chasidic education. Defendant maintains that he takes "excellent care of [the child] and ha[s] a wonderful relationship with her."
"[W]here parents enter into an agreement concerning custody, it will not be set aside unless there is sufficient change in circumstances since the time of the stipulation and unless the modification of the custody agreement is in the best interest of the [child]'" ( McNally v. McNally, ___ AD2d ___, 2006 NY Slip Op 02729 , quoting Smoczkiewicz v. Smoczkiewicz, 2 AD3d 705, 706; accord Matter of Rawlins v. Barth, 21 AD3d 495, 495, lv denied 5 NY3d 717 ; Bobinski v. Bobinski, 9 AD3d 441, 441; Matter of Gaudette v. Gaudette, 262 AD2d 804, 805, lv denied 94 NY2d 790). Stated differently, "[a]lthough the totality of the circumstances of the case and the best interests of the child are factors to be considered in all cases where modification of custody is sought, where the parties have entered into an agreement, the agreement is entitled to considerable weight and it is incumbent on the party seeking the change to show that in light of changed circumstances continued adherence to the agreement would not be in the children's best interests" ( Steck v. Steck, 307 AD2d 819, 819 [citations omitted]; accord Granata v. Granata, 289 AD2d 527, 527). Moreover, "[a] parent who seeks a change in custody is not automatically entitled to a hearing but must make some evidentiary showing sufficient to warrant a hearing" ( Teuschler v. Teuschler, 242 AD2d 289, 290).
In the instant action, plaintiff is not entitled, on the record before the court, to a hearing with respect to her motion for a modification of the existing joint custody arrangement between the parties. Taken together, plaintiff's allegations, at most, demonstrate the existence of some communication difficulties and antagonistic feelings between the parties concerning very specific — and discrete — elements of their decision making responsibilities as joint custodians of their child. It is well settled that joint custody is "only appropriate where the parties involved are relatively stable, amicable parents who can behave in a mature, civilized fashion [and are] capable of cooperating in making decisions on matters relating to the care and welfare of the children" ( Trolf v. Trolf, 126 AD2d 544, 544, lv dismissed 69 NY2d 1038; accord Braiman v. Braiman, 44 NY2d 584, 589-590; cf. Matter of Morehouse v. Morehouse, 251 AD2d 710, 710 [modification of parties' joint custody arrangement warranted where there was "substantial record evidence" of the parties' distrust of one another and inability to cooperate]; Laura A.K. v. Timothy M., 204 AD2d 325, 325 [joint custody inappropriate where record before the court was replete with hostility and antagonism between the parties to a degree which indicated that they were unable to put aside their differences for the good of the child]; Matter of George W.S. v. Donna S., 187 AD2d 657 [same]; Cmaylo v. Cmaylo, 76 AD2d 898, 899, lv dismissed 51 NY2d 770 [joint custody deemed a "failure" by court where testimony at hearing indicated that major conflicts and hostility existed between the parties]; see also Steinharter v. Steinharter, 11 AD3d 471 [in order to obtain a hearing to modify a visitation schedule there has to be a material change of circumstances since the entry of the judgment]).
However, mere instances of hostility between the parties is not, in and of itself, necessarily enough to demonstrate that changed circumstances warrant modification of a joint custody arrangement, especially where the fitness of the parents is not in question, the child has a good relationship with the parents ( see generally Janecka v. Franklin, 131 AD2d 436, 437; lv denied 70 NY2d 612) and no adverse effects to the child have resulted from the existing custody arrangement ( see generally Olimpia v. Steven M., 228 AD2d 270). In addition, at least one court has held that the modification of a joint custody arrangement did not have a sound and substantial basis in the record where such modification was based exclusively upon the inability of the parties to communicate and there was no explicit finding that there had been a change in circumstances sufficient to warrant modification of the existing custodial arrangement previously established by agreement of the parties ( see Marcantonio v. Marcantonio, 307 AD2d 740, 741 [reversing grant of motion to modify judgment of divorce, which had awarded joint custody to parties in accordance with their stipulation to same, where the court found that even though parties undisputably had been unable to communicate with each other since the time they were initially separated, and plaintiff was prohibited by an order of protection from communicating with defendant except for the limited purpose of decision making concerning their children, the children had nonetheless excelled academically, were socially well adjusted and the parties were both loving and involved parents capable of providing a good home]). Further, where the parties have entered into a custody agreement which is subsequently explicitly incorporated into a judgment of divorce, the existence of a short time frame between the establishment of the custodial arrangement and the motion seeking modification of same militates against a finding of sufficiently changed circumstances (see generally McNally v. McNally, ___ AD3d ___, 2006 WL 949066).
Here, the parties indisputably agreed to joint custody of the child and such agreement was incorporated into the judgment of divorce. Approximately six months after the judgment of divorce was issued, plaintiff brought the instant motion seeking a modification of the judgment of divorce to award her sole custody of the child. Plaintiff, however, has failed to establish that changed circumstances exist which warrant such modification. The only incidents recounted by plaintiff in support of her motion are: (1) defendant's tardiness in returning the child from visitation, (2) his enrollment of the child in unspecified extracurricular activities which has allegedly caused similarly unspecified "conflicts," (3) a monetary gift to the child from defendant which plaintiff deemed inappropriate and (4) the alleged inappropriate use of the child as a conduit between her parents for purposes of defendant's request that the child spend the beginning portion of the Passover holiday with him. The only documentary evidence provided is the "demand letter" which is dated prior to the judgment of divorce and appears, in any event, merely to demonstrate that some level of antagonism between the parties may have been present prior to the issuance of the judgment. Such letter, however, does not demonstrate that relations have deteriorated between the parties since the judgment became final ( see Risman v. Linke, 235 AD2d 861, 862 [changed circumstances not established where the record demonstrated that the parties' relationship was no more antagonistic during the period following the initial order of custody than it was at the time of the original entry of the order]). For his part, defendant complains that plaintiff has violated Chasidic custom by painting the child's fingernails for the purpose of "annoying" him and has allegedly "indicated" that an Chasidic education for the child is not important. Although a recent dispute concerning the choice of the child's school is alluded to in a memorandum of law prepared by plaintiff's attorney, such conclusory statements are not evidentiary in nature and do not provide the detail required for this court to determine that the recent schooling dispute demonstrates that a pervasive and pernicious inability on the part of the parties to engage in effective decision making with regard to the child has developed since the time the judgment of divorce was issued.The court finds, therefore, the conduct and interactions described appear to constitute "the ordinary type of bickering and conflicting behavior that estranged and divorced parents regrettably exhibit" and do not warrant a change in the previously agreed upon joint custody arrangement ( see generally Elizabeth T.L. v. Jeffrey C.L., 24 AD3d 270, 270-271). The record does not support a finding that the parties are so consumed with hostility, antagonism and disagreement that they are utterly incapable of engaging in the joint decision making to which they previously agreed. Most importantly, plaintiff's allegations are entirely bereft of any evidence that the child has been adversely affected by the parties' alleged communication difficulties. It is axiomatic that "the paramount concern in rendering a child custody determination is the best interest of the child and what will best promote [his or her] welfare and happiness" ( Gainey v. Gainey, 303 AD2d 628, 649, quoting Eshbach v. Eschbach, 56 NY2d 167, 171) and, therefore, a custody arrangement agreed upon between the parties and incorporated in the judgment of divorce should not be modified unless demonstrably necessary to maintain the best interest of the child in question ( see McNally v. McNally, supra, 2006 WL 949066). Given the lack of any evidence — other than plaintiff's conclusory and unsupported statement that defendant "is wholly incapable of taking care of [the child], and in fact never has" — that the presumed fitness of the defendant to care for, or make decisions with regard to, the child has changed since the judgment of divorce was issued — or that the child has suffered any adverse consequences as a result of the existing custody arrangement which would render it susceptible to modification, the court declines, at this juncture, to hold a hearing on this issue.
Plaintiff also alleges that she was coerced to execute the Stipulation under duress and states that she was bullied and intimidated by defendant during the negotiations leading up to the Stipulation as well as during the course of the instant matrimonial action. Given that plaintiff has withdrawn that portion of the motion seeking vacatur of the Stipulation, the court finds that such evidence, which largely pertains to the circumstances surrounding the negotiation of the Stipulation and its execution by plaintiff, shall not be considered with regard to that portion of her motion seeking custodial modification. The court finds this approach to be appropriate, especially in light of the fact that serious communication difficulties between parents, even when resulting, for instance, in the grant of an order of protection, as in the Marcantonio case, do not necessarily constitute evidence that changed circumstances exist which warrant modification of an agreement of the parents to share joint custody of the child and engage in joint decision making with regard to that child's welfare and upbringing. Accordingly, the court has limited its review to the incidents and communications alleged to have occurred between the parties subsequent to the judgment of divorce and which relate directly to joint decision making issues.
The court is mindful, however, that where the parties exhibit some degree of ongoing conflict, antagonism or disagreement, the concomitant communication difficulties may accumulate over time, causing relations to grow more strained and the ability to cooperate more tenuous, thereby necessitating the court to revisit and review the custody arrangement under the "changed circumstances" analysis in order to determine whether the parties' decision making ability with regard to their child has become so compromised that a modification of the custodial arrangement is warranted in the best interest of the child. Accordingly, the instant motion is denied without prejudice to any future motion which is supported by adequate evidence of sufficient changed circumstances to necessitate a hearing concerning the modification of the existing joint custody arrangement. The court is constrained, however, at this juncture and on this record, to deny the custodial modification requested by plaintiff.
The court is concerned that given the relatively brief period in between the signing of the judgment of divorce and this application, there may be an attempt to defeat joint custody as opposed to genuine conflict. In any application, the court must evaluate whether or not there is a genuine meritorious dispute or purposeful acts designed to create strife, to then be used as a basis to defeat the joint custody agreement.
Since 1978 when Braiman was first decided it has been the sine quo non for the proposition that joint custody is only appropriate where there is not an acrimonious relationship between the parents.
In the 28 years since Braiman, litigation related to custody has been significantly paramount in our family and matrimonial courts with an ever increasing dependence on the use of law guardians and forensic evaluations. The role and dynamics of parents and parenting has also changed. In this state the courts have begun to recognize that in some instances there should be custodial decision making authority to the non-custodial parent ( see, Chamberlain v. Chamberlain, 24 AD2d 589, Ring v. Ring, 15 AD3d 406).
Custody in all cases may not be an "either or" proposition but rather can be crafted in such a way that both parents participate in decision making with regard to the child's care irrespective of the "label" that custody carries. Such as an arrangement could be where the parents each have responsibility for different aspects of the child's upbringing but do not engage in joint decision making with regard to all child-rearing issues, or where the parties are invested by the court with differing degrees of ultimate decision-making authority with explicit allowances for input from the so-called "non-custodial" parent. Accordingly, even if the joint custody arrangement in this case was modified, such modification would not necessarily result in a "pure" sole custody arrangement. Rather, any number of different custody or what really should be called "parenting" arrangements could result.
Sporadic problems between the parents, especially where they have no demonstrable impact on the child's well-being, are not sufficient to warrant a hearing, and modification of, an agreed upon joint custody. Accordingly, the parties should be discouraged from provoking or engaging in such incidents, and, if necessary, may want to consider agreeing to seek the assistance of a parent coordinator. The decision to enter into a joint custodial relationship is a serious one to be agreed upon in appropriate circumstances, which should not be entered into casually, nor set aside easily.
With regard to plaintiff's application for attorneys' fees, such application is denied with leave to renew upon a proper evidentiary showing. Although plaintiff's attorney has submitted an affirmation stating, in general terms, the nature of his legal services to plaintiff, the amount of $10,000 which is sought is based upon an unspecified amount of hours and lacks detail as to the specific services rendered ( see McLane v. McLane, 209 AD2d 1001, lv dismissed 85 NY2d 924). Moreover, plaintiff has already paid her attorney $5,000 toward such fees and the fees sought apparently also include fees "projected to be required" which have not yet accrued. Although plaintiff's attorney states that an invoice for his services was attached to his affirmation, no such document has been located by the court. Accordingly, plaintiff's request for attorneys' fees is denied without prejudice to renewal upon submission of sufficient documentation with respect to the nature and value of the legal services actually rendered in relation to the instant motion.
In sum, plaintiff's motion to modify the judgment of divorce to award her sole custody of the child, and for attorneys' fees, is denied in accordance with the instant decision.The foregoing constitutes the decision and order of the court.