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IN RE: a Proceeding Under Article 6 of the Family Court Act, Gidget W., PETITIONER, v. Carl M., RESPONDENT. CARL M., PETITIONER, GIDGET W., RESPONDENT.
On August 23, 2021, Gidget W. (Mother) filed a modification petition seeking sole custody of the parties' 14 year old child, Milani M. (DOB: XX/XX/2009). On May 5, 2022, Carl M. (Father) cross filed seeking primary physical residency. Neither parent sustained their petition.
A detailed custodial order was entered on August 22, 2017, by Circuit Court Judge Valerie Bailey-Rihn, Circuit Court Branch 3, Dane County, Wisconsin ("Wisconsin Order"), which among other things, granted Mother and Father joint custody of the child with Mother having primary residency. The Wisconsin Order recognized that neither parent, nor the child reside in Wisconsin (Mother and the subject child Milani now reside in a suburb of Rochester, New York and Father now resides in Raleigh, North Carolina). The Wisconsin Order specifically held that the State of Wisconsin was no longer an appropriate forum to exercise exclusive and continuing jurisdiction. The Wisconsin Order also modified a restraining order which allowed the parties to have contact both via Talking Parents and by email, if necessary. Mother was to file the Wisconsin Order in New York within 30 days of its execution. Father filed the Wisconsin Order in Monroe County Family Court on November 24, 2017.
The Wisconsin Order entitles both parents to independent access, including but not limited to, the child's medical, dental and school records. Father's periods of residency included the first week of January, March, April, May, October, November and December; as well as the second week of September. Father and the child are to stay with his wife's parents in Rochester, New York or, upon 24 hours notice to Mother, at a different residence. Such terms in the Wisconsin Order were designed to provide stability for the child. Father's residence was not to be changed merely for his convenience. Still Father may exercise his residency with Milani during the February school recess in Rochester, or elsewhere at his discretion. The Wisconsin Order also set forth a holiday and summer schedule. The parties are to exchange the child at school or at a local New York police station. The Wisconsin Order includes, "Activities for the Child" (Milani was 8 years old at the time) as follows:
"The parties shall cooperate to ensure that the child has extracurricular experiences. The parent signing up a child for an activity shall immediately provide the other parent with contact information, schedules, etc. regarding the same, such that each parent has sufficient information to get Milani to any scheduled activity during his or her placement time, at the placement parent's option."
The child's extracurricular activities have caused the parties considerable conflict.
Milani is a gifted athlete. She is considered a "flyer" in cheerleading. Since seventh grade Milani has been on the high school varsity's competition cheer squad. She practices four to five times a week for school cheer from either 4:00 p.m. to 6:30 p.m. or from 6:00 p.m. to 8:00 p.m. Competitions are on the weekends. She is also on the All State Competitive Travel Cheer team which practices two additional times a week. She has six days of structured practice each week.
All State takes precedent over school cheerleading. There are six to seven All State competitions a year, including a four-day competition in Florida each spring. Competitions also have occurred in Buffalo, New York City, Philadelphia, New Jersey, Ohio and Canada. It is a rigorous schedule. Milani also takes tumbling and choreography to compliment her cheerleading. She has approximately an hour and a half between the end of her school day (at 2:45 p.m.) and her next practice. Her choreography practice is twice a week in the Town of Macedon (approximately a 30 minute car ride from her home) on Wednesday and Sunday. Milani often sleeps on the way to choreography practice.
Mother fully endorses and supports the child's cheerleading. Father, however, reluctantly does what is required of him to support Milani's cheerleading. Mother testified that Father has told her that "he did not sign up for that."
Mother admits that Milani first suffered a concussion in 2018 and another one in December 2022. Father claims Milani has suffered at least three concussions to date. Milani has strained muscles which restricted her movements, requiring rest and no running or jumping. According to both parents, Milani was diagnosed with orthopaedic scoliosis and is followed by her doctor every six months to a year. She suffers chronic migraines and has been prescribed medication for headaches. The parties are to watch for triggers and symptoms.
To date there have been 22 petitions filed in this Court, 16 by Mother and six by Father, resulting in this instant hearing, as well as this Court's two prior modification orders. The Court's first order, entered November 22, 2019, modified the Wisconsin Order, to allow Father, among other things, to enroll Milani in Girl Scouts. This Court's second order, entered February 27, 2020, further modified the Wisconsin Order to, among other things, obligate Father to ensure Milani's participation in "Cheer" with the caveat that the child was not to miss more than four Girl Scout events due to cheerleading, tumbling and, or choreography time-conflicts.
The hearing addressing the parties' two modification petitions was held over three days from January through June 2023. The Court heard testimony from four witnesses: Mother, Father, Father's wife, and Father's witness, Milani's cheerleading coach at school. The Court finds the witnesses' testimony to be credible (see Matter of Louise E.S. v W. Stephen S., 64 NY2d 946, 947  [respect is to be accorded the trial judge's advantage in observing the demeanor of the witnesses]; see also Matter of Smith v Ballam, 176 AD3d 1591, 1593 [4th Dept 2019] [trial court's determination of credibility after an evidentiary hearing holds great weight and will not be set aside unless it lacks an evidentiary basis in the record]). Both parties testified to concerns not raised in their petitions, however, this Court hereby conforms the pleadings to the proof (see Matter of Ariel C.W. - H., 89 AD3d 1438 [4th Dept 2011]). The Court admitted into evidence two exhibits: Respondent's Exhibit E (a text message dated October 25 from the child to Father's wife stating "I don't think mom understands when I'm hurt") and Respondent's Exhibit G, "My-Chart" Letter from the Division of Child Neurology, School of Headache Management Plan, dated September 1, 2022.
Father asserts that Mother has circumvented his periods of residency time with Milani by removing her from school, taking her out of town and otherwise denying him access to her. The gravamen of Father's claim is that Mother has engaged in a pattern of alienating his affection. A concerted effort by one parent to interfere with the other parent's contact with the child is so inimical to the best interests of the child, that it, per se, raises a strong probability that the interfering parent is unfit to act as a custodial parent (see Matter of Avdic v Avdic, 125 AD3d 1534 [4th Dept 2015], rearg denied, 129 AD3d 1556 [4th Dept 2015] [the court's determination that the mother had engaged in parental alienation behavior raised a strong probability she is unfit to act as a custodial parent]). Alienation requires more than just the "unjustified frustration of the non-custodial parent's access" (J.F. v D. F., 61 Misc 3d 1226(A), *4 [Sup Ct Monroe County 2018 Dollinger, J.]).
The Court does not condone the parties' antagonistic relationship and finds it is contrary to Milani's best interests; however, Father has not sustained a claim of alienation [(cf. Cowell v Pembrock, 113 AD3d 1118 [4th Dept 2014]). The testimony at trial centered upon Milani's time commitment to cheerleading, and her associated injuries. The Court does not find that Father has proven that Mother alienated the child from him. The strong relationship between Milani and Father was evidenced in part by Respondent's Exhibit E, a text message to Father's wife, in which Milani felt comfortable enough to confide, "I don't think my mom understands when I'm hurt." Likewise, the two in camera interviews the Court held with Milani on March 2, 2023 and on August 18, 2023 respectively (see Lincoln v Lincoln, 24 NY2d 270 ; Family Court Act § 664) demonstrate that Father enjoys reasonable access to Milani, without interference from Mother.
The purpose of an attorney for the children is "to help protect their interests and to help them express their wishes to the court" (see Matter of McDermott v Bale, 94 AD3d 1542, 1543 [4th Dept 2012]). Although a child's wishes are not determinative "they are entitled to great weight, particularly where their age and maturity would make their input particularly meaningful" (Matter of Stevenson v Stevenson, 70 AD3d 1515, 1516 [4th Dept 2010] lv denied 14 NY3d 712  [internal quotation marks omitted]; see also Matter of Rohr v Young, 148 AD3d 1681 [4th Dept 2017]; compare Matter of Lawrence v Marris, 151 AD3d 1879 [4th Dept 2017] [a child's desires do not chart the course of the litigation]; see also Matter of Williams v Reid, 187 AD3d 1593 [4th Dept 2020] [at 7- years-old and 5-years-old, the children were too young and not of sufficient maturity for their alleged desires to demonstrate a change in circumstances]).
The attorney for the child's closing statement read as follows, "Milani feels conflicted and therefore would take no position and would defer to the court." The Court held a second in camera interview with Milani (in the presence of the attorney for the child). The Court has considered Milani's wishes as well as her maturity and age: she was 13 years old at the time of the first interview and 14 years old at the second interview. Although not dispositive, the Court too has considered the child's preference.
Change of Circumstances
The parties first must prove a " 'change in circumstances which reflects a real need for change' " (Matter of James D. v Tammy W., 45 AD3d 1358 [4th Dept 2007], quoting Matter of Amy L.M. v Kevin M.M., 31 AD3d 1224, 1225 [4th Dept 2006]; see (Cowell v Pembrock, 113 AD3d 1118 [4th Dept 2014]); see also Matter of Higgins v Higgins, 128 AD3d 1396 [4th Dept 2015]) before the Court determines whether such a custodial/visitation change is in a child's best interests (see Pauline E. v Renelder P., 37 AD3d 1145 [4th Dept 2007]). While both parents' petitions assert there exists a change of circumstances warranting modification; Mother's closing argument posit there is no such change of circumstance, and asks this Court to enforce the current order.
The parents' relationship has been strained for years. Continuing primary physical residence with Mother aligns both with the Court's in camera interviews with Milani and with her attorney's statement that Milani requests the Court to decide where she will reside primarily.
The next school year is a transition year for the child as she moves from middle school to high school. Milani loves both her parents, as well as her Cheerleading pursuits. Despite the antagonistic relationship between the parties, the Court finds that Milani's parents must continue to work together during Milani's high school years.
THE COURT HAVING SEARCHED THE STATEWIDE REGISTRY OF ORDERS OF PROTECTION, THE SEX OFFENDER REGISTRY AND THE FAMILY COURT CHILD PROTECTIVE RECORDS, AND HAVING NOTIFIED THE PARTIES AND THE ATTORNEYS OF THE RESULTS OF THESE SEARCHES AND THE COURT HAVING CONSIDERED AND RELIED UPON THE SAME:
NOW THEREFORE, it is
ADJUDGED that there has been no change in circumstances that reflects a real need for change to ensure the best interests of Milani M. (DOB:XX/XX/2009); and it is further
ORDERED that both parents' petitions are dismissed.
Dated this 29th day of September, 2023 at Rochester, New York.
HON. DANDREA L. RUHLMANN
FAMILY COURT JUDGE
Dandrea L. Ruhlmann, J.
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Docket No: Docket No. V-11143-17/21Q
Decided: September 29, 2023
Court: Family Court, New York,
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