IN RE: a Proceeding Under Article 6 of the Family Court Act Brandi S. (2022)

By Order to Show Cause and Modification Petition filed June 17, 2020 and Amended Petition filed June 29, 2020, Brandi S. (Mother) seeks sole custody and primary physical residency of the parties' child, Jordan L. (DOB: XX/XX/2011). Joshua L. (Father) filed a petition on May 7, 2021 for enforcement of his temporary order of visitation entered March 10, 2022. Mother sustained her petition, in part, for a modification since entry of an Order of Custody entered March 31, 2014, as modified by an Order entered July 23, 2015. Mother shall be awarded primary physical residency of Jordan with Father having periods of temporary physical residency as detailed herein. The parties shall remain joint custodians of the child. Father established Mother's violation but circumstances militate against Mother serving time in jail ¹ . Instead Mother shall pay Father $589.95 as reimbursement for costs related to the Spring 2021 trip which Mother cancelled at the last minute which Father outlined in Exhibit B to his Enforcement Petition.

Fact Finding

A protracted trial (in part due to Covid-19 shutdowns) spanned six days over the course of a year-and-a-half. Mother, Father's girlfriend, Kelly G., and Father testified. Mother was 20 years old and Father was 18 years old when Jordan was born. They lived together as a family for approximately a year immediately after Jordan's birth (DOB: XX/XX/2011). In September 2013 Mother moved to Florida with Jordan. Within a year, Mother returned Jordan to Rochester after Father filed for custody. The parties consented to a joint custody order, with Father having primary physical residency ² . Thereafter, Mother enjoyed periods of temporary physical residency of Jordan in Florida each summer and during school recesses, as the parties mutually agreed.

In March 2020, at the onset of the pandemic, Mother filed an order to show cause and modification petition because she had no telephone access to Jordan. Father and his girlfriend Kelly G. had moved their family into a hotel, while awaiting a rental townhouse to be readied. Mother did not know where Jordan was living. She also received messages from Jordan's school. Mother learned through Father's girlfriend, Kelly G., that he was hesitant to send Jordan for the scheduled summer residency with her in Florida. On July 10, 2020 the Court granted Mother's application for a period of temporary residency in Summer 2020. Mother met Jordan at the Rochester airport. Jordan arrived barely in time to board the plane and with only the clothes he was wearing. Subsequently this Court granted Mother's application to allow Jordan to attend school in Florida during the 2020-2021 school year.

Father has longstanding primary residency. Father and Jordan lived with paternal grandmother, "Leeann" for approximately four years. At trial Father lived with his girlfriend and the mother of his two other children, Kelly G.; their daughter Messiah (6 years) and son Kane (4 years). Ms. G.'s son from a previous relationship, Braden (16 years) also lived with them ³ . Ms. G. is a homemaker. Father works 40 plus hours a week at a local restaurant. The family shares one cell phone and one car. Jordan's extended paternal family also live in the Rochester, New York area.

It is undisputed that Kelly G. acts as the primary communicator for Father. For example, attendance letters from school are addressed to her, not Father. All three witnesses testified that Father very rarely communicates with Mother. Both Kelly G. and Mother acknowledge that Jordan was bullied at school in Rochester. Ms. G. testified that Jordan often would feign illness or cry before school begging to not attend and go to the nurse's office with stomachaches during school. Father did not pursue any type of individual counseling for Jordan. In contrast, Mother engaged Jordan in individual counseling in Florida in Summer 2020. Mother also arranged for Jordan to see a psychiatrist who prescribed Attention Deficit Hyperactivity Disorder (ADHD) medication for him. A cardiologist recently cleared Jordan to take that medication. When questioned about the need for Jordan's counseling, Father testified that while he supports it in concept, "honestly, I feel like he doesn't really need it." Kelly G. echoed the same sentiment. At trial Father also asserted that both individual counseling and family counseling was "being set up."

Jordan needed extensive dental treatment. Kelly G. testified both that Mother was to procure dental services during Jordan's summer visit to Florida and that she provided Mother with Jordan's MVP insurance information. Mother disputes that she received accurate insurance information from Ms. G. Mother did arrange for Jordan's dental services in Florida only after he lived with her long enough to be eligible for Medicaid coverage. Jordan required five tooth extractions. Mother also took Jordan to an ophthalmologist and Jordan now wears glasses.

Kelly G. testified that she and Father took Jordan to the pediatrician at Genesee Pediatrics with the rest of their children. Jordan, she testified, did not have any special medical needs other than an occasional stomach bug or headache.

Jordan's attendance in Florida is solid. He attends the Code Academy in Lakeland Florida where he is in accelerated classes for reading, science and English. He participates in chorus.

Mother lives in Florida with her fiance , David C., who works from home and is able to watch Jordan when Mother is at work. Mother is pursuing a Bachelor of Arts degree in nursing at Polk State College. In June 2020 she worked as a home health aide for Comfort Keepers and now works at Lakeland Regional Hospital as a nurse intern. Jordan has his own room in their rented townhouse. Mother has another son, now age 13, Gabriele O., who lives with his father in Babson Park, Florida. Mother testified that the brothers see each other often, either weekly or bi-weekly.

Since Summer 2020, Jordan has returned to Father's home twice for visits. Father reported his most recent visit to be a success. He played with his brothers at Father's house. They enjoyed time at the park, went bowling and to the movies. Jordan's time is Rochester gave him renewed access to his paternal relatives. His Father noticed that Jordan arrived with pampers to wear at night, due to a bed wetting problem that Jordan has dealt with on and off.

Exhibits

The Court received into evidence the following exhibits offered by Mother: Exhibit 1, Modified Custody Order entered July 23, 2015, which upon consent of the parties, granted Mother 6-8 weeks residency with the child, Jordan, during the Summer and at additional times; Exhibit 2, Order of Custody entered March 31, 2014 which, upon consent of the parties, established, among other things, joint custody, Father having primary physical residency and Mother having periods of residency; Exhibit 6, Jordan's school records from Wendell Watson Elementary School, Lakeland, Polk County, Florida, Quarter 3 for 2020-2021; Exhibit 7, Jordan's school records from Wendell Watson Elementary School, Quarter 1 for 2020-2021; Exhibit 8, Jordan's school records from Walt Disney Elementary School, Gates Chili Central School District, New York for the period from 2018 - 2020; Exhibit 9, medical records of the child from Florida, Exhibit 10, Tri-County Human Services, Inc., Jordan's counseling records from December 14, 2020 through August 31, 2021. The Court also received into evidence two videos that Mother downloaded from Bandlab AFC Exhibit 1 in which Father speaks about marijuana and AFC Exhibit 2 in which Father addresses the quality, quantity and variety of marijuana in his possession. The Court conformed the pleadings to the proof. Family Court "may sua sponte conform the pleadings to the evidence" (Barton v Barton, 111 AD3d 1348 [4th Dept 2013]).

Credibility

"It is well settled that a court's determination regarding custody . . . , based upon a first-hand assessment of the credibility of the witnesses after an evidentiary hearing, is entitled to great weight and will not be set aside unless it lacks an evidentiary basis in the record" Matter of Crill v Crill, 181 AD3d 1199 [4th Dept 2020]). The Court found both Mother and Kelly G. to have gaps in credibility. For example, Mother exaggerated the child's educational improvements in Florida and downplayed his educational success in Rochester; Kelly G. was incredible when she stated they gave Mother the child's insurance information for Jordan's dental problems. Father's testimony was credible but he is a poor historian of the facts.

Change of Circumstances

The parties stipulated to both prior orders of custody (see Friederwitzer v Friederwitzer, 55 NY2d 89, 95 [1982] [a custodial agreement resulting from an agreement from the parties warrants less weight than one which follows a trial and a decision by a court]). Although priority must be accorded to the existing custodial agreement, when a prior disposition results from a stipulation that was not based on a best interests analysis, it will not be accorded the same weight as if it resulted from a full hearing (Matter of Maher v Maher, 1 AD3d 987 [4th Dept 2003]). The current custodial arrangement has been in effect for over six years. The Court finds that Mother has proven a significant change in circumstances since the 2014 Custody Order as modified by the 2015 Modification Order. There is a " 'change in circumstances which reflects a real need for change to ensure the best interest[s] of the child' " (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]). Specifically, Father impeded Mother's access to the child during COVID-19, the child was in need of medical care, he was bullied in Rochester which affected his education and Father discounted the child's emotional needs. The Court next must determine what custodial arrangement is in this child's best interests.

Best Interests

Factors courts have carved out to ascertain the best interests of children, include

(1) the continuity and stability of the existing custodial arrangement, including the relative fitness of the caretaker and the length of time the present custodial arrangement has continued; (2) the quality of the child's home environment and that of the persons seeking custody; (3) the ability of the person to provide for the child's emotional and intellectual development; (4) the financial status and ability of each proposed caretaker to provide for the child; and (5) the individual needs and expressed desires of the child as well as the need for the child to live with siblings (see Fox v Fox, 177 AD2d 209, 210 [4th Dept 1992]; see also Matter of Braga v Bell, 151 AD3d 1924 [4th Dept 2017], lv denied 30 NY3d 905 [2017]). Further in determining the best interests of a child, a court must consider any "abduction, elopement or defiance of the legal process" (Robert T.F. v Rosemary F., 148 AD2d 449 [2d Dept 1989] citing Friederwitzer v Friederwitzer, 55 NY2d 89, 94 [1982]); and see Matter of Plaza v Plaza, 305 AD2d 607 [2d Dept 2004]) as well as the effects of domestic violence ⁴ (Hendrickson v Hendrickson, 147 AD3d 1522 [4th Dept 2017]). The Court has considered each of these factors in evaluating what custodial arrangement is in the child's best interests.

Child's Desires

The Court held an in camera interview after fact finding (see Lincoln v Lincoln, 24 NY2d 270 [1969]; Fam Ct Act § 664). Although not dispositive, the Court too has considered the child's preference as advocated by his attorney which is to live with Mother as well as his maturity and age (11 years old). 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 [2010] [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]). Any provision allowing a child to decide when he sees a parent "tends unnecessarily to defeat the right of visitation" (Matter of Casolari v Zambuto, 1 AD3d 1031 [4h Dept 2003] (internal quotation marks and citation omitted)).

Totality of the Circumstances

The Court must evaluate the totality of the circumstances, no one factor is determinative (Matter of Edmonds v Lewis, 175 AD3d 1040 [4th Dept 2019], lv denied 34 NY3d 909 [2020]). Great deference is accorded to the determination of the trial court (see Matter of Cross v Casewell, 113 AD3d 1107 [4th Dept 2014]). Both parties have failed to foster a strong relationship between the child and the other parent. After considering the totality of the evidence and weighing the best interests factors carefully, the Court finds that the best interests of Jordan warrant that Mother be awarded primary physical residence. Father proved to be deficient in providing adequate medical, dental and mental health services for his son. Father maintained he produced the videos received as AFC Exhibits 1 and 2 in California where previously marijuana was legalized. Mother proffered no evidence to the contrary.

Still Mother displayed a superior ability to provide for Jordan's needs. Mother procured extensive dental care, Jordan's prescription glasses, mental health counseling and ADHD medications all in Florida. Still, the Court finds that Jordan would continue to benefit from a strong relationship with both his Mother and Father. The parties must set aside any mistrust that developed during the pendency of this action and promote only what is best for Jordan so his life may be enriched by both parents.

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 hereby

ADJUDGED that Mother violated the Court's order granting Father temporary physical residency from March 20, 2021 through March 28, 2021, but COVID-19 circumstances militate against Mother serving any jail time. The Court finds it is in the best interests of the child that Mother hereby is ordered to reimburse Father for the airline tickets he purchased in the amount of $589.95; and it is further

ADJUDGED that a change of circumstances exist; and it is further

ORDERED that it is in the best interests of Jordan that Mother and Father continue to enjoy joint custody with Mother now having primary physical residency of the child in Florida; and it is further

ORDERED that Mother shall continue to engage Jordan in therapy as directed by the child's therapist; and it is further

ORDERED that the family shall engage in family counseling with a separate family counselor as directed by the child's therapist;

ORDERED that Mother shall continue to ensure Jordan has regular check-ups with his pediatrician, dentist, optometrist, psychiatrist and cardiologist; and it is furtherORDERED that Mother and Father shall discuss and share in any important decisions concerning the child; and it is further

ORDERED that for Summer 2022, Father shall enjoy one week of residency with Jordan; and it is further

ORDERED that for Father's Summer 2022 residency he shall provide Mother with two days notice of the week he intends to exercise his Summer Residency with Jordan (before the commencement of school); and it is further

ORDERED that after the 2022 Summer Residency, Father shall enjoy temporary periods of residency with Jordan in New York for 6-8 weeks during the Summer; and it is further

ORDERED that (not including Summer 2022) Father shall provide Mother with 30 days written notice of the weeks he intends to exercise with Jordan; and it is further

ORDERED that each parent shall pay for the costs of transportation to begin his/her residency with Jordan; and it is further

ORDERED, that the parties shall exchange the child at the Petersburg Virginia Police Station located at 37 E. Tabb Street, Petersburg, VA 23803, unless as otherwise agreed at an alternate location; and it is further

ORDERED that any time Father travels to Florida, he shall be permitted to visit with the child provided that he gives Mother reasonable written notice and the time requested does not interfere with the child's school, activities, etc.; and it is further

ORDERED that Jordan shall reside with Father during Jordan's spring recess from school; and it is further

ORDERED that the parties shall alternate time with Jordan during his Thanksgiving Holiday from school with Mother having Jordan in even years and Father having Jordan in the odd years; and it is further

ORDERED that in the even years Father shall have residency of the child during Jordan's Christmas Holiday recess from school from December 23rd until December 29th and in the odd years Mother shall have residency with Jordan during his Christmas Holiday; and it is further

ORDERED that the holiday visitation schedule shall supersede the parties' regular visitation schedule; and it is further

ORDERED that the parents shall have other and further periods of temporary physical residency as they agree; and it is further

ORDERED that each party must keep the other advised at all times of their present address and phone number(s); and it is further

ORDERED that neither parent shall permanently remove Jordan from Monroe County, New York or its adjacent counties, or from Polk County, Florida or its adjacent counties, without prior written, notarized consent of the other parent or an order from a court of competent jurisdiction; and it is further

ORDERED that both parties shall have the right to full access of the child's providers including medical, educational, social, religious, or otherwise, including the right to records consultation and participation in all activities that a parent is allowed to, and each may contact the providers directly. Mother has an affirmative and ongoing duty to promptly notify Father in writing of the child's Spring break period from school, and of the child's providers, including names and contact information and any changes thereto; and it is further

ORDERED that each party shall promptly notify the other as to any emergency involving the child while the child is in his or her care; and it is further

ORDERED that both parties shall enjoy reasonable telephone contact with the child when he is in the other's care, including contact through face time, video/zoom etc. as available; and it is further

ORDERED that neither parent shall consume or be under the influence of excessive alcohol, excessive marijuana or illegal drugs in the presence of the child, nor shall they allow any third party to do so; and it is further

ORDERED that neither party, nor any third parties, shall smoke cigarettes or marijuana in the presence of the child; and it is further

ORDERED that neither Mother nor Father shall use physical or corporal discipline or punishment on Jordan nor allow any third party to use corporal or physical punishment on him; and it is further

ORDERED that neither party shall commit any act of violence toward the other party or to Jordan nor allow any third party to commit any act of violence towards Mother, Father or Jordan; and it is further

ORDERED that Mother and Father shall not leave Jordan unsupervised, unattended or with inappropriate caregivers; and it is further

ORDERED that neither party shall engage in any form of illegal activity in the presence of the child, nor shall they permit any third parties to do the same; and it is further

ORDERED that Mother and Father shall not make any disparaging or derogatory remarks about the other parent in the presence of Jordan nor in the hearing of the child, nor permit any third party to do so; and it is further

ORDERED that New York shall retain continuing exclusive jurisdiction over any further petitions concerning the child; and it is further

ORDERED that this Order shall supersede all prior orders including XXXXXXXX entered March 3, 2014 and XXXXXXXX entered July 23, 2015..

Dated this 25th day of July, 2022 at Rochester, New York.

HON. DANDREA L. RUHLMANN

FAMILY COURT JUDGE

PURSUANT TO § 1113 OF THE FAMILY COURT ACT, AN APPEAL MUST BE TAKEN WITHIN THIRTY DAYS OF THE RECEIPT OF THE ORDER BY APPELLANT IN COURT, THIRTY-FIVE DAYS FROM THE MAILING OF THE ORDER TO THE APPELLANT BY THE CLERK OF THE COURT, OR THIRTY DAYS AFTER SERVICE BY A PARTY OR ATTORNEY FOR THE CHILD UPON THE APPELLANT, WHICHEVER IS EARLIEST.

FOOTNOTES

1.   President Donald J. Trump signed an emergency declaration in response to the coronavirus pandemic on March 13, 2020; New York State Governor Andrew M. Cuomo declared a state of emergency on March 14, 2020, as did Monroe County Executive Adam Bello.

2.   Order of Hon. Joseph G. Nesser entered March 31, 2014 as modified, upon consent, by Order of the Hon. Joseph G. Nesser entered July 23, 2015.

3.   Mother has repeatedly alleged that Kelly's oldest son, Willie G. "Trey" now 20 years old, sexually abused Jordan when Trey lived with the family. Although investigated by law enforcement and child protective services these claims were unfounded.

4.   Here similar to Russell v Russell "the only pleaded allegations of domestic violence committed by the father were contained in a family offense petition that was [abandoned in 2013]. . . and thus there were no pleaded allegations of domestic violence before the court" (Matter of Russell v Russell, 173 AD3d 1607, 1609 [4th Dept 2019]).

Dandrea L. Ruhlmann, J.