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IN RE: a Custody/Visitation Proceeding M.L., Petitioner, v. J.P.G., Respondent.
IN RE: a Custody/Visitation Proceeding J.P.G., Petitioner, v. M.L., Respondent.
The matter before the Court concerns the legal custody, residential custody and parenting time with respect to the child, J.A.G. (D.O.B. 00/0/0000) (the "child"). J. is the sole child of M.L. ("mother") and J.P.G. ("father"). The parties were never married. Their prevailing custody arrangement is set forth in a Final Order of Custody dated May 8, 2014 (the "2014 Custody Order"). Such provides the parties with joint legal and joint residential custody of the child, requires them to engage in full and fair discussion of any issues relating to the child's health, education and welfare, and, where the parties cannot agree, provides the father with final decision-making authority as it relates to medical issues.
The current proceedings were initiated in September of 2018, when the mother filed an Enforcement/Violation Petition under Article 6 of the Family Court Act ("FCA"), alleging that the father had violated this Court's order dated August 7, 2018 [the "August 2018 Final Order"]. ("Mother's Violation Petition", Docket No. V-00000-00/00T). The parties thereafter filed numerous cross custody modification, cross custody enforcement and cross family offense petitions. The majority of these petitions were dismissed or withdrawn.
The following cross-petitions remain before the Court for disposition through a fact-finding proceeding:
• The Mother's Violation Petition referenced above (Docket No. V-00000-00/00T);
• The father's cross-enforcement petition filed January 22, 2019, alleging that the mother had violated the parties' 2014 Custody Order ("Father's Violation Petition", Docket Nos. V-00000-00/00W and V-0000-00/00S);
• The mother's cross-modification petition filed February 21, 2019, seeking modification of the parties' 2014 Custody Order ("Mother's Modification Petition", Docket Nos. V-00000-00/00X and V-00000-00/00T); and
• The father's cross-modification petition filed October 7, 2019 ("Father's Modification Petition", Docket Nos. V-00000-00/00U and V-00000-00/00Y).
The fact-finding hearing on these matters was initially scheduled to commence on June 17, 2019. On that date, the Court granted the father's application to relieve his Court-assigned counsel. At that time, even though the fact-finding hearing had been scheduled since March, the Court also granted his application to adjourn the fact-finding hearing for an additional three-and-a-half months so that he could retain private counsel (as he rejected the opportunity to be screened and represented by further court-assigned counsel).
The fact-finding hearing on these matters commenced on October 7, 2019. On that date, the Court denied the father's request for a further adjournment of the fact-finding hearing, after considering, inter alia, the father's history of being represented by numerous different attorneys, the fact that the Court had already granted prior adjournments before the scheduled start of the fact-finding hearing in this matter, the parties' protracted custody and family offense litigation history, the prejudice that would result to the mother and counsel from a further adjournment, and the fact that the issues to be resolved were highly time-sensitive—including the issue of where the child would attend school moving forward. (See Yuliano v. Yuliano, 175 AD3d 1354, 1357 [2d Dept. 2019]; Matter of Shannon W. (Philip W.—Kim M.), 147 AD3d 960, 961 [2d Dept. 2017]).
Furthermore, while the father stated that his recently retained counsel was engaged that day, and considering that the Court had set the fact-finding dates in June, four months prior, and that the Court found numerous deficiencies in his attorney's purported Affirmation of Engagement, as well as subsequently receiving communication from the attorney confirming that he had not yet been retained by the father and that he had advised the father that he could not represent him due to scheduling conflicts, the Court proceeded to fact-finding.
The father thereafter proceeded, pro se, and on numerous occasions refused further opportunities to screen for court-assigned counsel. Additionally, on many court dates he was advised that he could appear with privately retained counsel at any time, but that there would be no further adjournments of the fact-finding hearing. Kellie Stabile, Esq., represented the mother. The Attorney for the Child, Michael Kaszubski, Esq., appeared and represented the child. The fact-finding hearing continued across several dates. About ten days into the extensive fact-finding proceedings, and after the father failed to appear with private counsel and continued to reject the opportunity to be screened for court-assigned counsel, the Court assigned Jason Isaacson, Esq., to be the father's legal advisor for the fact-finding hearing. The Court also afforded the father ample latitude with respect to questioning witnesses, calling witnesses based upon questionable offers of proof (which witnesses, for the most part, offered no relevant or persuasive testimony), and testifying extensively in the narrative. As a result, after many additional days of fact finding, the hearing concluded on January 17, 2020.
Under the prevailing custody arrangement, the child splits time equally between both parents, who reside many miles apart in different counties. This arrangement has proven to be completely untenable, particularly due to the parties' incessant inability to agree on issues relating to the child's education and medical needs, as well as transportation. Their utter inability to cooperatively co-parent is underscored by their repeated back-and-forth filing of petitions and cross-petitions relating to which school the child will attend.
The Court therefore conducted a fact-finding hearing to determine the appropriate parenting plan for the child. On the mother's direct case, she testified on her own behalf, and called the father and her own mother, M.L., as additional witnesses. On the father's direct case, he testified on his own behalf, and called several additional witnesses: A.D., L.B., M.L., Y. H., K.B., J.O., M.L., E.W., and G.P. The Court paid careful attention to the testimony of the many witnesses whom testified during the fact-finding hearing. The Court had more than an ample amount of time during the extensive proceedings to assess the credibility of the parties and of their respective witnesses; to judge their character, temperament and sincerity. The Court has also reviewed all of the documentary evidence. The Court has paid particular attention to evaluating which parent is more likely to facilitate a loving, meaningful and healthy relationship with the other parent.
The mother's first witness on her direct case was the father. The father testified about a situation in 2016, where it appeared that the mother was going to move into the father's home and made various arrangements to do so including registering the parties' child and the mother's two other children to attend school at the A.C.S. in H., New York. He testified that they did not end up residing together; that he was surprised when the mother subsequently informed him that she would not be moving in, and that she never offered him an explanation for the apparent change in plans. The child continued residing with the father 50% of the time pursuant to the 2014 Custody Order. The father confirmed that even though neither party has sole residential custody under the 2014 Custody Order, he obtained a child support order which requires the mother to pay him support.
The Court noted various inconsistences in the father's testimony regarding his employment- he testified that he performs maintenance at a R.I., that he has worked there for about three years, that he works a flexible schedule three days a week, and that he "rarely" works when the child is with him. Examples of apparent inconsistencies include when he testified during the pendency of the proceedings that he had lost his job due to his having to be in court, but then subsequently testified that he was still employed in that same job. Additionally, he appeared evasive when testifying about the specific details regarding his employment arrangement, including who was his actual employer- the R.I. or some other entity. He was equally non-responsive when testifying about whether he brings the child to work with him, including one incident where the child was allegedly hurt while the father was "not working", but was "helping out" with a "staff" party. As cross-examination of the father continued, he became more evasive, less responsive and increasingly disrespectful toward opposing counsel.
It is clear from the testimony of both parents that the issue of the child's schooling and educational needs has been a major source of contention and disagreement. The parties' testimony indicates that in 2016, after the mother informed the father that she would not be moving in with him in H., the parties each instituted litigation: the father in Nassau County Family Court, and the mother in Suffolk County Family Court, to resolve the issue of where the child would attend Kindergarten.
A Temporary Order of Custody and Parenting time dated September 6, 2016 [Pet. Ex. 1], was issued out of Nassau County Family Court (Aaron, J.), which temporarily granted the mother sole legal and sole residential custody of the child and required that the child attend X.X.X. ["XXX"], a Catholic school located in X.X. (Pet. Ex. 1). The mother also obtained an order from Suffolk County Family Court which permitted her to enroll the child in XXX.
The parties' custody litigation continued into the 2017-2018 school year, with the child preparing to go into the First Grade. The child continued to attend XXX, but the father wanted her to attend B.J.A. ("BJA"), a private school located in Y. He confirmed that he exercised his "summer" parenting time during the first week of school in September 2017, and that during that time he emailed XXX's principal, stating that the child was no longer attending XXX and would instead be attending BJA. This was all done without the mother's knowledge or consent. He further testified that he attached to that email a copy of the child support order which obligates the mother to pay him child support. (Pet. Ex. 9).
A hearing was scheduled to address where the child would attend school in the 2017-2018 school year and during the pendency of that hearing, this Court issued an Order dated September 18, 2017, which directed that the child would attend XXX for the 2017-2018 school year until further order of the Court. (Pet. Ex. 17).
The parties returned to Court to address the 2018-2019 school year, with multiple court appearances resulting in the issuance of an Order dated August 7, 2018, which directed, on consent of all parties and counsel, that the child would attend BJA for the 2018-2019 school year and that the father would be responsible for all costs associated with the child attending BJA, including transportation to and from the school. (Pet. Ex. 19, i.e. August 2018 Final Order).
The father testified that, with respect to the August 2018 Final Order, he was not required to pay for bus transportation for the child; he was just supposed to pay for "transportation". He confirmed that the parties had discussed bus transportation for the child, both orally and in emails. He confirmed that he did not pay the bus company for the child's bus transportation to school until October 29, 2018, which was after this Court had issued an order directing that the child was to be enrolled in the C.C. School District. (Transcript, 10/8/2019, 33:21 through 34:4).
The testimonial and documentary evidence offered during the fact-finding hearing establishes that while both parents are genuinely concerned about the child's academic performance and needs, they are utterly unable to cooperatively arrive at a solution to address those needs. Both parties, but in particular the father, are so unable to make any concessions with respect to any aspect of the child's education- e.g. selecting home study tools and services, determining whether and how to get the child tested for potential services — that it would not only be ineffective but would actually be more problematic to order consultation with the non-custodial parent before decision-making.
While the mother is certainly not without her faults, the Court finds, after considering and paying close attention to both parties' testimony on this subject, evaluating the same for consistency and for relative probability or improbability, and also evaluating the documentary evidence reflecting communications between the parties on this issue, that the mother took greater efforts to confer and compromise with the father about these concerns. In contrast, the fact-finding testimony and documented communications evidenced that the father exhibited more rigidity and less willingness to consider the validity of points of view which differed from his own. (Pet. Ex. 4; Pet. Ex. 21; Resp. Ex. Y; Resp. Ex. AA).
The Court is particularly mindful of the testimony and evidence presented concerning the convening of the Committee on Special Education ("CSE") by the C.C. School District. While the parties have repeatedly come to Court on the issue of the child's schooling, the Court has never been provided with any expert testimony or other similar evidence to enable it to evaluate the relative strengths or weaknesses of the academic programs offered by any of the schools that the child has attended: XXX, BJA or her current school, F.J.O. Elementary School (the public elementary school in the C.C. School District). Accordingly, the Court will not make any findings or evaluations in that respect.
Prior to litigation and during the course of litigation the mother wished to have the CSE convene to obtain appropriate services for the child. The father consistently blocked her attempts for such. The Court notes that the father confirmed that he resisted having the child tested or the CSE convened in the schools selected by the mother- and that he instead opted to pay for evaluations, tutors and materials issued by private companies. For two parents with documented and undisputed financial difficulties, the Court finds the father's course of conduct questionable and illogical. On December 14, 2018, this Court issued an Order which directed the mother to contact the C.C. School District to arrange for the CSE to convene and gave the mother full authority to consent to any agreements with the CSE. (Resp. Ex. PPP). On June 17, 2019, the Court amended the foregoing Order to give the mother sole decision-making authority regarding the child's educational and educational services after consulting with the father. (Pet. Ex. 22).
The father called two witnesses to testify about the child's schooling. The father called J.O., a nurse from the F.J.O. Elementary School, to testify about the child's physical examination being conducted for entrance into school. The Court found this witness's testimony irrelevant and deems it unpersuasive.
The father also called K.B., the Acting Director of Special Education for the C.C. School District, and the school district's CSE chairperson. The Court observed Ms. B. and found that she testified in a forthcoming and credible manner. The Court finds that Ms. B.'s testimony was largely irrelevant, except to establish that the child was retained in the First Grade for the 2018-2019 school year based on the recommendation of the child's previous school and with the mother's permission for such retention, and that the CSE convened and determined that the child is learning disabled and requires a specialized program to meet her educational needs.
The Court further notes Ms. B.'s credible testimony that at a subsequent meeting between the mother, the father, and Ms. B., the father told Ms. B. that he had come to understand his daughter's disability a little better, and that he also said that the child was in a "good placement" for her in the C.C. School District. (Transcript, 12/12/2019, 69:24 through 70:5). The Court further notes that the father never refuted this testimony from Ms. B.
The Court was presented with testimony and documentary evidence at the fact-finding hearing which established that the parties are essentially incapable of cooperatively co-parenting with respect to any aspect of the child's life-- including what religion she practices and where and when her extracurricular activities will take place. The Court found that the father appeared somewhat disingenuous and unreasonable when testifying and questioning the mother about the child's weekly dance class infringing on his parenting time. On the one hand, the father sought to establish that he had been very involved in the child's prior years of dance instruction, including by attending her dance recitals and participating in parent dances. However, he purported to establish that the mother acts unreasonably and in violation of his rights by having the child attend a weekly dance class close to her home in S. County, and by asking the father to push back his pickup time to accommodate that class.
Certainly, the father is correct that the mother acted improperly on those occasions where she kept the child the entire night after a dance class, during the father's court-ordered parenting time. However, the Court listened to the testimony from both parties, evaluated their credibility and demeanors, and reviewed the documentary evidence presented during the fact-finding, and finds that the mother was not unreasonable to request a modification in the father's pick up time to enable the child to participate in an activity that she enjoys once a week, particularly considering the evidence that the mother informed the father of class dates, recital dates, made efforts to involve him in the daughter's participation in the activity, and offered the father makeup time for his missed parenting time. (Pet. Ex. 15; Resp. Ex. PPPP).
The Court finds that, after carefully observing both parties and their witnesses during the fact-finding hearing, after evaluating their testimony for cohesion and logic, and after reviewing the documents placed into evidence, that each party, but particularly the father, has at various times wielded his or her parenting time, child support obligations/rights or decision-making authority as a tool to inconvenience or anger the other parent, rather than placing the child's best interests as their top priority. The Court is mindful, for example, of the numerous instances where the father rejected the mother's suggestions or requests by asserting his final decision-making authority on medical issues, even on issues that were only remotely, if at all, related to the child's medical care.
That is not to say that the mother has been the perfect parent- indeed, the Court was presented with evidence that both parties have at times failed to adhere to court-ordered parenting time exchanges, and that both parents have at times acted improperly in front of the child during such parenting time exchanges. On the other hand, while the Court hereby reiterates that both parties must conduct themselves in an appropriate manner in future exchanges, the Court is concerned by the father's stated practice of using video and/or audio means to record such exchanges. While the father purported to record the exchanges as a means of protection, the Court finds that the practice reflects a lack of foresight and fosters a sense of distrust and animosity between the parties, which would only result in causing unnecessary stress on the child.
The fact-finding hearing included allegations relating to the parties filing family offense petitions against each other in Nassau and Suffolk Courts, as well as contacting CPS to report the other parent, due to alleged concerns that the child was not safe while in the other parent's home and/or under his or her supervision. After considering the testimony and documentary evidence offered in connection with such conduct, and after meeting and speaking with the child in-camera, the Court finds no competent, credible evidence which would cause it to have concerns that the child has now or in the past been the victim of or otherwise exposed to sexual misconduct while under the supervision of either party.
On the other hand, the Court finds it necessary to address the father alleging that the child was subjected to violence at the hand of her half-brother E. The Father's Modification Petition included extensive and detailed allegations of physical harm and injury imposed on the child by E. and alleges that such conduct occurred in the mother's presence. After considering all of the testimony presented at the fact-finding hearing, and after evaluating the parties' and their witnesses' demeanors and attitudes while testifying, the Court finds that the father failed to prove through competent, credible evidence that the child is unsafe in the mother's home.
Moreover, the Court found it particularly troubling and concerning that, after asserting such serious and alarming allegations regarding E.'s conduct toward the child, that the father then called E. as a witness to testify on his behalf, and that when asked for an offer of proof for E.'s testimony, that the father stated that he intended to have E. testify as to the conditions of the mother's home. The Court finds that it was disingenuous for the father to question E. about the condition of the mother's home during a period of time through December 2019, when the evidence established that E. was not even residing in the home for most of that period. Even more troublesome, the Court learned that the father had arranged for E. to testify on his behalf, including by transporting the minor from the mother's residence to the Court, without first conferring with the witness's own mother.
Furthermore, while the father went to lengths to portray E. as a dangerous and mentally unstable individual, E. testified that he and the father are friends. Overall, the Court finds that the father failed to prove, through competent and credible evidence, that the mother's home was an unsafe environment for the child. Moreover, by calling E. to testify on his behalf, the father appeared disingenuous and acted in a manner which fosters distrust and animosity with the mother, rather than promotes cooperation and collaboration.
The Court was equally troubled by the father apparently giving inconsistent and conflicting home addresses to the Court, to the mother and to counsel during the course of the litigation. First, the Court finds that such discrepancies and uncertainties make it impossible to evaluate the quality of the father's home environment, an important factor for determining custody of the child. Second, the Court finds that both the father's documented refusal to give the mother an accurate address and his lying to the mother about moving out of his former residence fosters a sense of distrust and doubt between the parents, rather than encouraging and fostering transparency and cooperation. (Pet. Exs. 27; 28; Resp. Ex. FFFFF).
Similarly, the Court finds that testimony and other evidence that the father surreptitiously recorded conversations between himself and others strongly indicates that it would be impossible for the mother to effectively co-parent with him. Specifically, the Court finds that such conduct would make it difficult for the mother to trust him, considering that he admitted to audio recording conversations with the child, the mother, collaterals, teachers, doctors, and therapists, all without the knowledge of the other participants in the conversations except for himself.
The Court paid careful attention to the testimony of all of the witnesses who testified but is compelled to note that most of the witnesses who testified on the father's behalf were found to not provide relevant, credible testimony and the Court deemed such testimony to be unpersuasive. The Court also conducted an in-camera interview with the subject child. It will not reveal the substance of such interview with the child other than to state that the Court has considered her testimony and has given such the appropriate weight in reaching its decision. The Court notes that the Attorney for the Child ("AFC") has stated on the record that his client loves her current school in C.C., loves spending time with both of her parents, and that his client's desire is to split her time between both of her parents. However, the AFC, acknowledging that the substantial geographical distance between the parties' residences makes such an arrangement impractical, has requested that the Court grant the mother sole residential custody with the father to receive substantial parenting time.
The Parties' Respective Modification Petitions
"Modification of an existing custody or visitation order is permissible only upon a showing that there has been a change in circumstances such that a modification is necessary to ensure the continued best interests and welfare of the child". (Matter of Lamarche v. Rooks, 142 AD3d 707, 708 [2d Dept. 2016]; Paruchuri v. Akil, 156 AD3d 712, 713 [2d Dept. 2017]).
Upon finding that modification of a prevailing custody arrangement is necessary, the Court must examine the totality of the circumstances to determine what new arrangement would further the child's best interests, considering such relevant factors as "[t]he desirability of maintaining stability in the child's life, the relative quality of the respective home environments, the length of time the present custody arrangement has been in place, and each parent's past performance, relative fitness, ability to guide and provide for the child's well-being, and willingness to foster a relationship with the other parent". (Matter of Khan v. Khan, 160 AD3d 960, 962 [2d Dept. 2018]; Matter of Scheiner v. Henig, 155 AD3d 874, 875 [2d Dept. 2017], leave to appeal den., 31 NY3d 902 ). The weighing of these various factors requires careful consideration and evaluation of all of the evidence in the record, including the testimony, character and sincerity of all the parties involved in this type of dispute. (Matter of Eschbach v. Eschbach, 56 NY2d 167, 173 ; Matter of Rory H. v. Mary M., 13 AD3d 373, 373-74 [2d Dept. 2004]).
In this case, the evidence adduced at the fact-finding establishes that a substantial change in circumstances has occurred since the parties' 2014 Custody Order awarded them joint legal custody and joint residential custody, such that modification of the prevailing custody arrangement is necessary to protect the best interests of the child. Specifically, the Court finds that the parties' relationship has deteriorated to such a degree that joint custody is no longer appropriate or feasible. (Matter of Khan, supra, 160AD3d at 962). Joint custody is inappropriate where, as here, the parties are antagonistic toward each other and have demonstrated an inability to cooperate on matters concerning the children. (Matter of Moore v. Gonzalez, 134 AD3d 718, 719-20 [2d Dept. 2015]).
The overwhelming evidence establishes that these parties are completely unable to engage in joint decision-making, evidenced by the fact that they are essentially unable to communicate to resolve any disagreements or differences in opinion relating to the subject child. (See, e.g., Matter of Zall v. Theiss, 144 AD3d 831, 832-33 [2d Dept. 2016]). Indeed, rather than collaboratively reaching a resolution on issues, they have both resorted to filing multiple successive petitions in Family Courts in both counties to resolve their disagreements. Their communications and personal interactions are wholly contrary to that of "relatively stable, amicable parents behaving in mature civilized fashion", for whom joint custody is an appropriate custody arrangement. (See, e.g., Paruchuri, supra, 156 AD3d at 713).
The parties have each filed a petition seeking modification of the parties' current joint custody arrangement; each is seeking sole legal and sole residential custody of the subject child. Having carefully considered and weighed all of the evidence in the record, and having personally observed the demeanors and attitudes of the parties and their witnesses, the Court finds that it is in the child's best interests for the mother to be awarded sole legal and sole residential custody, with parenting time afforded to the father 1 . The Court makes this determination based on its evaluation of the totality of the circumstances, including that such an arrangement would maintain stability in the child's life and conform to the child's desires to remain in her current school. (Matter of Moran v. Cortez, 85 AD3d 795, 797 [2d Dept. 2011]).
The Court has further reached this determination based on its concern over the father's apparent failure to be forthcoming when discussing his employment and his home address, indicating that sole custody to the mother would likely provide a relatively superior home environment for the child. Finally, the Court finds that while the co-parenting and general parenting skills of both parents are subject to criticism, the evidence adduced during the fact-finding establishes that, of the two, the father presents as more manipulative and inflexible with respect to making major decisions and the mother is more likely to promote and foster the child's relationship with the father as the non-custodial parent. (Matter of Roa v. Marte, 171 AD3d 759, 762 [2d Dept. 2019]). For these reasons, and for the many reasons discussed above, it is hereby
ORDERED, that the Mother's Modification Petition to award her sole legal and sole residential custody is granted; and it is further,
ORDERED, that the Father's Modification Petition is denied in its entirety and the Father's Modification Petition is dismissed.
The Mother's Violation Petition
The mother alleged that father violated the Court Order dated August 7, 2018, which required the father to "be responsible for all costs associated with the minor child attending the B.S.D.A. School including transportation to and from school". (August 7, 2018 Final Order, Pet. Ex. 19) (Emphasis supplied). The mother alleged that the father violated the same because he failed to pay for the child's bus transportation, which left the child without a way to get to school. (Mother's Violation Petition, ¶¶ 7a and 7b). The father argued in opposition that the subject order did not require him to pay for bus transportation, rather, he was required to pay for transportation.
After listening to and considering the parties' hearing testimony on this issue and reviewing the documentary evidence reflecting communications between the parties about transportation, the Court finds that the mother established, through competent evidence, that the father violated the August 2018 Final Order. Such established that the parties, counsel and the Court understood and intended the term "transportation" to mean "bus transportation" [e.g., Pet. Ex. 3; Pet. Ex. 13; Resp. Ex. S], and that the father did not pay the costs of bus transportation until October of 2018, which was after the mother filed her Violation Petition in September of 2018. Moreover, even if "transportation" could be understood to cover modes of transportation other than bus, the evidence established that the father did not pay for a viable, reasonable alternative mode of transportation. Thus, he violated the terms of the Order.
However, the relief sought in the Mother's Violation Petition—permission to register the child in C.C. School District—is rendered moot by the within Decision and Order resulting from the underlying Fact-finding hearing, as the parent with sole legal and sole residential custody shall have final decision-making authority on all major decisions concerning the child- including the child's education and where the child will be enrolled in school. For these reasons, it is hereby ORDERED, that the Mother's Violation Petition is denied as moot and the Mother's Violation Petition is hereby dismissed.
The Father's Violation Petition
The father alleged that the mother violated the parties' 2014 Custody Order. The Court notes that the father filed his Violation Petition by Order to Show Cause, and that the Violation Petition itself sets forth only bare and conclusory allegations and that, even after a lengthy fact-finding hearing, in which the father called numerous witnesses and also he himself extensively testified in the narrative, he failed to substantiate such allegations with competent and credible evidence [Father's Violation Petition, ¶ 7a]. (Matter of Witherow v. Bloomingdale, 40 AD3d 1203, 1204 [3d Dept. 2007]). However, the Court stated on the record that it was granting the father leeway to question the mother about additional allegations that were set forth in his Order to Show Cause and not in his Violation Petition.
To that end, the father alleged that the mother took the child out of state to P. and to N.J. and did not give the father information on where they were staying. The 2014 Custody Order requires that if either party is traveling out of New York State with the child, he/she is required to provide the other parent with notice and a complete itinerary, including but not limited to airline flight information, destination (hotel, address, etc.) and telephone numbers where he/she and the child can be reached, at least one (1) week prior to the trip. The mother admitted during the fact-finding proceeding that she did not strictly adhere to these requirements for two out-of-state trips taken with the child. The father did not otherwise substantiate any of the allegations in his Violation Petition or Order to Show Cause with competent and credible evidence. (Matter of Witherow, supra, 40 AD3d at 1204).
Accordingly, the Court finds that the father proved that the mother violated the 2014 Custody Order. The father's Violation Petition requests that the Court "enforce" the 2014 Custody Order, grant the father sole legal and sole residential custody, and place sanctions on the mother for "causing dangers to the child". (Father's Violation Petition, ¶ 7b). The father's testimony was void of any dangers posed to the child. The father's request for enforcement of the 2014 Custody Order is rendered moot, as that Order is now hereby superseded by the within Decision and Order, which sets forth the parties' rights and obligations moving forward.
The Court, in its discretion to fashion appropriate remedies in matters concerning custody and parenting time, otherwise denies the father's requests for relief under his Violation petition. Such denial is based, inter alia, on the Court's extensive history with the parties, its observation of all of the witnesses and its assessment of their demeanors and its evaluation of the parties' historical inability to co-parent. (Matter of Quick v. Brown, 176 AD3d 1224, 1225-26 [2d Dept. 2019]; Matter of Woodson v. Woodson, 163 AD3d 833, 834 [2d Dept. 2018]). The determination is further based on the Court's finding that both parties, but particularly the father, failed to comply with the 2014 Custody Order's provision which required that they "engage in full and fair discussion of any issues relating to the health, education and welfare of the [subject] child". (Matter of Quick, supra, 176 AD3d at 1225-26; Matter of Woodson, supra, 163 AD3d at 834; see also, Matter of Wright v. LaRose, 271 AD2d 615, 616 [2d Dept. 2000]). Accordingly, it is hereby ORDERED, that the Father's Violation Petition requesting the imposition of various sanctions is hereby denied and the Father's Violation Petition is dismissed.
Both Parties are Required to Seek Court Permission Before Filing Future Applications
Although "[p]ublic policy mandates free access to the courts, a party may forfeit that right if she or he abuses the judicial process by engaging in meritless litigation motivated by spite or ill will". (Matter of Graham v. Rawley, 145 AD3d 721, 722-23 [2d Dept. 2016], leave to appeal den., 29 NY3d 911 ; Matter of McNelis v. Carrington, 105 AD3d 848, 849 [2d Dept. 2013], leave to appeal den., 21 NY3d 861 ; Matter of Naclerio v. Naclerio, 132 AD3d 679, 680 [2d Dept. 2015]; Matter of Reiss v. Giraldo, 77 AD3d 759, 759 [2d Dept. 2010]; Matter of Mueller v. Mueller, 96 AD3d 948, 949 [2d Dept. 2012]). Under such circumstances, it is within the Family Court's discretion to enter an order which requires a litigant to seek permission of the court before filing future custody, parenting time and/or family offense applications. (Matter of McNelis, supra, 105 AD3d at 849-850; Matter of Naclerio, supra, 132 AD3d at 680).
In this case, the Court finds, based on its history and familiarity with the parties, its evaluation and assessment of the testimony and documentary evidence adduced in the fact-finding hearing, and, after taking judicial notice of the countless petitions filed by both parties pertaining to custody and/or parenting time as well as the numerous family offense petitions filed by both parties, and after considering that such litigation has been pursued in both Nassau and Suffolk County family courts, the Court finds that both parties have abused the judicial process. It is particularly evident to this Court that both parties have engaged in meritless litigation motivated by spite or ill will based on their both filing successive petitions, and that they would often file such successive petitions during ongoing pending litigation, and that they would apparently file such successive petitions without the aid of counsel, even if at the time of filing they were represented by counsel.
Accordingly, and based on the foregoing, both parties are hereby required, as set forth below, to seek permission from the Court before filing any future applications with the Family Court, including any motions, any new petitions and/or amended or supplemental petitions. (Matter of Graham, supra, 145 AD3d at 722; Matter of Mueller, supra, 96 AD3d at 949).
The Court has searched the statewide registry of orders of protection, the sex offender registry and the Family Court's warrant and child protective records and is notifying the attorneys for the parties that the results of the searches are as follows: The order of protection matters referenced in this decision are reflected on the search. The Court has considered and relied upon the above noted results of these searches in making its decision.
Accordingly, the following is hereby ORDERED under the mother's Modification Petition (Docket Nos. V-00000-00/00X and V-00000-00/00T):
ORDERED, that the mother, M.L. ("mother"), shall have sole legal custody and sole residential custody of the subject child, J.G. (D.O.B. 00/0/0000) ("child"); and it is further
ORDERED, that the mother shall have final decision-making authority on all matters pertaining to the child's health, education, and welfare including final decision-making authority regarding all educational and medical issues; and it is further,
ORDERED, that the parties shall adhere to the following with respect to the father, J.P. G.'s ("father") parenting time with the subject child:
• The father shall have parenting time with the subject child on every other weekend, commencing with pick-up of the child from the child's school on Friday afternoons until drop-off (return of the child on) Sunday evenings at 7:00 PM; except that if school is not in session on a particular Friday, then such parenting time shall commence with pick-up at 3:30 PM on that Friday, at such pick-up location designated below. The father's alternating weekend parenting time shall commence on Friday, April 3, 2020; and,
• The father shall further have parenting time with the child every Wednesday for a weekly dinner visit, commencing with pick-up of the child at 5:00 PM until drop-off at 8:00 PM, at such pick-up and drop-off location designated below. The father shall be responsible for feeding the child dinner and assisting her with her homework during such visit. The father's weekly dinner parenting time shall commence on Wednesday, April 8, 2020; and it is further,
ORDERED, that unless specified otherwise, the father shall be responsible for all pick-ups and drop-offs for his regular weekly and alternating weekend parenting time sessions, with such pick-ups and drop-offs, unless otherwise specified, taking place curbside at the mother's residence, with neither parent or their representatives leaving their home or car; and it is further,
ORDERED, that the parents shall adhere to the following holiday parenting time schedule, which shall supersede all other parenting time provisions:
• On President's Day from 9:00 AM until 8:00 PM, the father shall have the child for parenting time in even years, the mother shall have the child in odd years;
• On Memorial Day from 9:00AM until 8:00 PM, the father shall have the child for parenting time in even years, the mother shall have the child in odd years;
• On July 4th from 9:00AM until 8:00 PM, the father shall have the child for parenting time in odd years, the mother shall have the child in even years;
• On Labor Day from 9:00 AM until 8:00 PM, the father shall have the child for parenting time in even years, the mother shall have the child in odd years;
• On Thanksgiving from Wednesday at 6:00 PM until Friday at 1:00 PM the father shall have parenting time in even years, the mother shall have the child for parenting time in odd years;
• The father shall have parenting time in even years on Christmas Eve from December 24th at 6:00 PM until December 25th at 1:00 PM, and the mother shall have parenting time in even years from 1:00 PM on December 25th, until New Year's Day (January 1) at 1:00 PM; the mother shall have parenting time in odd years on Christmas Eve from December 24th at 6:00 PM until December 25th at 1:00 PM, and the father shall have parenting time in odd years from 1:00 PM on December 25th, until New Year's Day (January 1) at 1:00 PM;
• In odd years the father shall have parenting time Easter weekend from Saturday at 6:00 PM until Sunday at 8:00 PM and in even years the mother shall have parenting time from Saturday at 6:00 PM until Sunday at 8:00 PM; and it is further
ORDERED, that the parties shall alternate parenting time for the school recess breaks as follows: the father shall have parenting time with the child for the entire duration of the child's "Winter" school recess in even years, and the mother shall have the same for the child's "Winter" school recess in odd years, with "Winter" school recess being defined as the extended school recess break which is typically scheduled during February of any given school year; the mother shall have parenting time with the child for the entire duration of the child's "Spring" school recess in even years, and the father shall have the same for the child's "Spring" school recess in odd years, with "Spring" school recess being defined as the extended school recess break which is typically scheduled during April of any given school year. Parenting time for all school breaks shall commence at 6:00 PM on the last day of school prior to the extended school recess and end at 5:00 PM on the day before the child's return to school from the extended school recess; the school recess break parenting time provisions shall take precedence over all other parenting time provisions; and it is further,
ORDERED, that the mother shall have parenting time every year on Mother's Day from 8:00 AM to 8:00 PM and the father shall have parenting time every year on Father's Day from 8:00 AM to 8:00 PM; each parent will also have parenting time with the child on his or her respective birthday as follows: if school is not in session, the parent whose birthday it is shall have parenting time with the child from 8:00 AM to 8:00 PM; if school is in session, the parent whose birthday it is shall have parenting time with the child from 5:00 PM to 8:00 PM; and it is further,
ORDERED, that the parent who does not otherwise have parenting time with the child on her birthday shall be entitled to two hours of parenting time with the child on her birthday, the times to be mutually agreed upon by the parties in writing; however, if school is in session on the child's birthday in a given year, then the parent who does not otherwise have parenting time with the child on her birthday shall be entitled to two hours of parenting time with the child, commencing with pick-up of the child from school, to 6:00 PM drop-off of the child curbside of the residence of the parent who has parenting time with the child that day; such birthday parenting time shall take precedence over all other parenting time provisions; and it is further,
ORDERED, that with respect to the parties' "summer" parenting time, the "summer" is defined as 9:00 AM on the day after the last day of school for the extended summer recess, through 5:00 PM on the day before the child returns to school in the next school year. Each party may exercise two (2) non-consecutive one (1) week periods of uninterrupted parenting time for a vacation with the child in the summer. The mother shall choose her two non-consecutive weeks first in odd years and shall notify the father in writing of her selected weeks no later than May 1; the father shall then notify the mother in writing of his selected weeks no later than May 21; in even years, the father shall choose his two non-consecutive weeks first and shall notify the mother in writing of his selected weeks no later than May 1; the mother shall then notify the father in writing of her selected weeks no later than May 21. The parties' summer parenting time shall precede all other parenting time provisions; and it is further,
ORDERED, that the mother shall not relocate the child's residence outside of the Counties of Suffolk or Nassau, State of New York, without the written, notarized consent of the father or a further Order of this Court or one of competent jurisdiction; and it is further,
ORDERED, that each parent shall have reasonable daily telephone access to the child whenever the child is in the care of the other parent; and it is further,
ORDERED, that neither parent shall utilize audio and/or video recording devices for surveillance purposes in the presence of the child; and it is further,
ORDERED, that the father shall have full access to all of the child's educational, medical, and extracurricular records, and that the mother shall execute any and all authorizations and/or releases necessary to effectuate the release of such records to the father; and it is further,
ORDERED, that if either party is traveling out of the State of New York with the child, then at least one (1) week prior to such trip, he or she shall provide the other with notice of the trip and with a complete itinerary, including but not limited to all airline flight information (airport, airline flight number and times of departure and arrival), the destination (address, hotel or the like) and telephone number(s) where he or she and the child can be reached; and it is further,
ORDERED, that neither party shall denigrate or disparage the other party in front of the child, or permit a third-party to denigrate or disparage the other in front of the child; and it is further,
ORDERED, that there shall be any further and additional parenting time that the parties agree to in a future writing; and it is further,
ORDERED, that the party who has the child during a time when the child has an extracurricular activity or social activity shall be responsible for transporting the child to/from such activity in a timely fashion; and it is further,
ORDERED, that the mother, M.L., and the father, J.P.G., are both hereby prohibited from filing any further applications in the Family Court, including those concerning or in any way addressing family offenses (including applications concerning modifications and/or violations of Temporary and/or Final Orders of Protection issued under Article 8 of the Family Court Act); and both parties are hereby prohibited from filing any further applications in the Family Court concerning or in any way addressing custody and/or parenting time (including applications concerning modifications and/or violations of custody and/or parenting time orders), including by way of petition(s), supplemental petition(s) and/or motion(s), without first obtaining prior written permission from the Court to file such applications.
In order to seek permission of the Court, the applicant mother and/or father must submit to the Clerk of the Court an affidavit stating with specificity the reasons that court intervention is required, and violations of any prior orders, or any new changes in circumstances and any other information that the applicant mother and/or father deems pertinent explaining her/his need for filing an application, as well as a copy of her/his proposed petition(s), supplemental petition(s) and/or motion(s). The mother and/or the father shall not be allowed to file any applications as noted above without first complying with the prior directives and receiving written permission from the Court.
PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE ATTORNEY FOR THE CHILD UPON THE APPELLANT, WHICHEVER IS EARLIEST.
1. While the parties' 2014 Custody Order provided the parties with equal parenting time on an alternating two-week schedule, the Court finds that such a parenting schedule is no longer in the child's best interest based on a number of factors, including the significant geographical distance between the parties, their demonstrated inability to cooperatively co-parent, as well as the child's age, education and welfare. The modified parenting time schedule is set forth in the decretal portion of the within Decision and Order.
Conrad D. Singer, J.
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Docket No: File No.: 000000
Decided: March 30, 2020
Court: Family Court, New York,
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