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IN RE: a Custody Proceeding Under Article 6 of the Family Court Act S.J., Petitioner, v. K.A., Respondent.
Petitioner S.J. (hereinafter “the mother”) and Respondent K.A. (hereinafter “the father”) are the parents of the subject children, seven-year-old son C.A. and seven-year-old daughter H.A. This is a proceeding pursuant to Family Court Act Article 6 for modification of the Order entered September 18, 2017 (following a Decision rendered September 8, 2017, after a Fact-Finding Hearing). The 2017 Order granted joint custody to the parties with final decision-making authority to the father. The father was granted primary placement of the children; he was to have the children five nights per week, while the mother was to have the children on Friday and Saturday nights. The Order allowed the parties to modify the parenting time schedule by mutual agreement in writing. Holidays, birthdays, and vacations were to be shared equally. Both parties were granted equal access to the children's extracurricular activities, as well as to their medical and educational records and providers.
This action commenced with the mother's filing of a pro se Article 6 Modification Petition on September 25, 2020. The parties appeared before the court with counsel on December 14, 2020. The mother was represented by Attorney Kelly A. Damm. The father was represented by Attorney Christopher Colosi. The children were represented by Attorney Kathleen Sullivan of Citizens Concerned for Children, Inc.
On December 15, 2020, the mother filed an Amended Petition seeking primary placement of the children with continuation of joint legal custody. The mother alleges a change in circumstances since the 2017 Order warranting a change in placement based upon the following: (1) a change in the father's work schedule such that the father's wife now cares for the children during the late afternoon and evening hours of the father's five days; (2) a change in the mother's work schedule such that the mother is now available to care for the children at those times; (3) an incident during which the children became upset when the stepmother went to a neighbor's house and left the children home alone; (4) the father lets C.A. sip beer; (5) while the father does homework with the children, he does not enjoy it; (6) the father and stepmother expose the children to scary movies; and (7) H.A.’s teacher reported that H.A. appeared to have lost some self-confidence in the classroom in November of 2020.
On January 12, 2021, the father filed a Motion to Dismiss for failure to state a cause of action alleging that the mother failed to make the requisite evidentiary showing of a significant change in circumstances to warrant a hearing. On February 10, 2021, the Attorney for the Children filed an Affirmation in Support of the father's Motion to Dismiss. On February 22, 2021, the mother filed an Affidavit in Opposition to the Motion to Dismiss.
A “party seeking to modify an existing custodial arrangement” must “demonstrate, as a threshold, that ‘there has been a change in circumstances since the prior custody order significant enough to warrant a review of the issue of custody to ensure the continued best interests of the children’ (Matter of Tyrel v. Tyrel, 132 AD3d 1026, 1026  [internal quotation marks and citations omitted]; see Matter of Gerber v. Gerber, 133 AD3d 1133, 1135 ).” Matter of Harrell v. Fox, 137 AD3d 1352, 1354 (3rd Dept. 2016). “[I]t is only when this threshold showing has been made that Family Court may proceed to undertake a best interest analysis” (Matter of Meyer v Lerche, 24 AD3d 976, 977 ).” Matter of Kerwin v. Kerwin, 39 AD3d 950, 951 (3rd Dept. 2007). If the petitioner meets that burden, he or she must then demonstrate that the “best interests of the child[ren] would be served by modification of that order (Matter of David ZZ. v. Suzanne A., 152 AD3d 880, 881, 58 N.Y.S.3d 711  [internal quotation marks and citations omitted]; accord Matter of Heather U. v. Janice V., 160 AD3d 1149, 1150, 74 N.Y.S.3d 410 ).” Beers v. Beers, 163 AD3d 1197, 1198 (3rd Dept. 2018).
Even accepting the mother's proof as true and affording her every favorable inference, the court must find that the Petitioner fails to demonstrate a material change in circumstances since entry of the 2017 Order. Turning first to the parties’ work schedules, a change in a parent's work schedule does not constitute a sufficient change in circumstances to warrant modification of a custody order. The Third Department has held that the rearrangement of a parent's work schedule is not a substantial change in circumstances. Boedecker-Frey v. Boedecker-Frey, 176 AD2d 392, 393 (3rd Dept. 1991); Matter of Katz v. Evans, 199 AD2d 940, 941 (3rd Dept. 1993). This is so even when the schedule change results in a non-parent providing after-school care to the children. Goodfriend v. Devletsah-Goodfriend, 29 AD3d 1041, 1042 (3rd Dept. 2006).
Due to the COVID-19 pandemic, all families have had to adapt to changing and often unpredictable work and school schedules. All schools were physically closed from mid-March through June of 2020. Beginning in the Fall of 2020, different schools have offered various instruction options ranging from fully remote/virtual to fully in-person to a hybrid combination of the two; however, even fully in-person programs have suddenly gone virtual for periods of time due to actual, suspected, or anticipated COVID-19 cases within the schools. In fact, the father states in his motion that the children had been fully virtual for the preceding three weeks. Due to the change in his work schedule, he was able to be home with the children and assist them with their schooling during those weeks. The father asserts that he specifically changed his work schedule so that a responsible adult would always be available to care for the children no matter what happens with school.
With both of these parents working at some point during the day and with school unpredictably oscillating between in-person and remote, it will be necessary, at times, for the children to be in the care of someone other than the parents until school returns to normal. The mother proposes the maternal grandmother for this very purpose. In fact, if the mother were to be granted primary placement, she would need the assistance of the grandmother to care for the children every morning before school as her work shift begins at 7:00 a.m. She would also need the grandmother to care for the children and assist them with remote schooling during the days and weeks that school shifts to virtual. However, given the authority set forth above, given the fact that this is not the first (nor necessarily the last) time one of these parents has or will change his or her work schedule, and given the fact that the current school situation is presumably a temporary one, none of this rises to the level of a significant change in circumstances warranting modification of the well-established custody order.
The mother further alleges that on one occasion the stepmother walked to the neighbor's house after putting the children to bed, leaving the children home alone. By all accounts, this was an isolated incident. According to the Final 1034 report filed with the court, the neighbor provided a statement that the children arrived 3-4 minutes after the stepmother, that C.A. was laughing, and that H.A. was upset that the stepmother did not bring the children along. The mother contends that both children were upset and scared, however she acknowledges that the children knew exactly where to find the stepmother as they had earlier overheard the neighbor inviting the stepmother. Even assuming the mother's version of events is true, this single incident does not constitute a substantial change in circumstances.
The mother further alleges that the father lets C.A. sip his beer. She claims that C.A. told her that on “several occasions” the father let C.A. sip his beer and that C.A. likes the taste of it. (Amended Petition, ¶ 7(h)). The father alleges he allowed C.A. to take “two sips of beer” “[a]bout two years ago.” (Affidavit in Support of Motion to Dismiss, ¶ 5(p)). The mother contends she “find[s] it hard to believe” it only happened twice two years ago since C.A. recently mentioned it. (Affidavit in Opposition to Motion to Dismiss, ¶ 52). As the mother acknowledges in her papers, the father has assured the court and CPS that this would not happen again. The court finds, as above, that this does not constitute a significant change in circumstances.
The remaining allegations — that the father does not enjoy helping the children with their schoolwork, that the children viewed a scary movie at the father's home, and that H.A.’s teacher detected a loss of confidence in her in November of 2020 — even if true, are neither surprising nor unusual, and they certainly do not meet the requisite threshold showing of a substantial change in circumstances warranting modification of the long-standing custody order. As such, it is hereby
ORDERED that the petition is dismissed for failure to state a cause of action.
Scott A. Miller, J.
Response sent, thank you
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Docket No: XXX
Decided: February 25, 2021
Court: Family Court, New York,
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