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

Petitioner S.R. (hereinafter "the mother") and Respondent S.W. (hereinafter "the father") are the parents of the subject child V.W. (date of birth: XX/XX/20). This is a proceeding pursuant to Family Court Act Article 6 for custody/visitation and relocation. This action commenced with the mother's filing of a Petition for Custody on April 16, 2021. On April 29, 2021, the father filed an Answer and Counter-Petition for Custody. On June 3, 2021, the mother filed a Verified Amended Petition for Custody and Relocation. On October 5, 2021, the father filed an Answer to the Amended Petition and an Amended Counter-Petition for Custody.

A Fact-Finding Hearing was conducted by the court on October 14, 2021, October 15, 2021, October 27, 2021, December 3, 2021, December 8, 2021, December 23, 2021, and January 21, 2022. The mother was represented by Attorney John Hanrahan, III, the father was represented by Attorney Susan Kirby, and the child was represented by Attorney Angelica Parado-Abaya of Citizens Concerned for Children, Inc. Petitioner's Exhibits 1 through 4, 6 through 12, 14a, 16, 17, 19, 22, 24 through 27, and 31 were received into evidence. Respondent's Exhibits A, B, C, E, F, G, H, and I were received into evidence. Court Exhibit 1 was received into evidence. The court heard testimony from D.G., A.F., D.H., and the parties.

The Court searched the statewide registry of orders of protection, the Sex Offender Registry, and the Family Court's child protective records, and notified the parties and the attorneys of the results of these searches.

FINDINGS OF FACT

The Court found the mother to be wholly credible and credits the entirety of her testimony. Her honesty, responsibility for her own mistakes, and decency in the face of appalling treatment are commendable. She is a fit and capable mother who has continued to foster the child's relationship with his father despite the father's maltreatment of her. By contrast, the Court found the father to be largely incredible and rejects most of his testimony. He would not give straight answers to many of the questions posed to him, and his testimony was loaded with subtle barbs against the mother. Further, the Court found the father to be incapable of acknowledging the gross level of his deceit and the magnitude of the injury he inflicted upon the mother.

The mother was raised in Wilmington, North Carolina. Several years ago, she moved to upstate New York to pursue a relationship. She was already employed with American Airlines at the time, and she transferred her work location from Wilmington to Ithaca, New York. After the relationship ended, she remained here. The mother met the father - who also worked at the Ithaca airport - in 2019, and they became friends. They became romantically involved during Christmas of 2019. From that point forward, she began to stay over at his apartment regularly. Two months later while the couple was vacationing in St. Thomas, the mother became pregnant with the subject child.

In April 2020, the mother began subleasing her own apartment. She began giving the father money to help him pay his rent, which was in excess of $1,100 per month. She believed he was using the money she was giving him to pay his rent. In November of 2020, one week before the child was born, the father received a letter from his apartment manager informing him that he owed $4,500 in back rent.¹ The maternal grandmother stepped in and paid the father's back rent to help the couple avoid possible eviction (Petitioner's Exhibit 2). To date, the father has not repaid the loan.

The mother discovered other unpaid debts of the father in a shared bin of already-opened mail. These debts included over $3,000 in unpaid taxes and multiple NYSEG bills. She also discovered many Amazon purchases the father had made for himself including clothes, shoes, sweaters, watches, and rings (Petitioner's Exhibit 4).

On November XX, 2020, the child was born. Throughout the child's life and to present, the mother has been his primary caregiver. From birth until the parties' split in March of 2021, the mother provided nearly all of the child's care, while the father spent long hours outside of the home, either working or leading the mother to believe he was at work.

In late January 2021, the mother, father, and child went to visit Wilmington. It was then that the father first met the mother's relatives and friends who live there. The father stayed for two days and then returned to Ithaca, while the mother and the child remained in Wilmington for one month. Pictures from the visit reveal a happy, loving family (Petitioner's Exhibit 1).

Throughout the mother's pregnancy and into the early months of the child's life, the mother, relying on the father's representations to her, believed that she and the father were in an exclusive, romantic relationship. They participated in a pregnancy photo shoot in September or October of 2020, during which he lovingly held and kissed her (Petitioner's Exhibit 6). They had sexual relations at least one time that fall. Naked screenshots of the father were taken during a Facetime call between the parties during the mother's month-long stay in North Carolina in early 2021 (Petitioner's Exhibit 6).

Upon returning from the North Carolina trip in late February of 2021, the mother discovered that evidence of the child and herself had been hidden or removed from the father's apartment. The child's sonograms were gone. The child's bassinet was covered in a pile of clothes. In early March 2021, while folding those clothes, the mother discovered a pair of women's underwear that did not belong to her.² She began keeping track of the father's mileage for a week and discovered he was only driving .2 miles when he said he was going to work which was located at least ten miles away. On the morning of March 14, 2021, she confronted him. At first, the father stated he had been going to his friend A.F.'s house to "party"; however, upon further questioning by the mother, he ultimately confessed that he had been romantically involved with A.F. since June of 2020.

At the fact-finding, the father admitted that for months he had hidden A.F.'s existence from the mother and he had hidden the mother's - and the child's — existence from A.F. He admitted that while the mother and child were in North Carolina, he actively removed their belongings from plain view so that A.F. would not discover them. He admitted that on March 14, 2021, the mother learned about A.F. for the first time and A.F. learned about the mother and the child for the first time when the mother contacted A.F. that day. The Court rejects the father's testimony that he told the mother about A.F. that day because he wanted to be honest with her; it is clear from the evidence that he only told the mother about A.F. because the mother had already discovered his infidelity.

The mother was devastated by this news. There was a bottle of wine in the refrigerator, and she began to drink it. Meanwhile, the father left for work. The mother admitted she became "inebriated" and drank too much that day. That afternoon, she contacted A.F. over Facebook Messenger (Petitioner's Exhibit 7). She also called A.F. multiple times. It is noteworthy that even under these trying circumstances, the mother was not hostile towards A.F.; rather, she desired to speak with A.F. and make A.F. fully aware of her and the child's existence. At one point in the Facebook Messenger exchange, A.F. told the mother, "What'd you expect dude you've been broken up. He was going to move on. You were together for two months that's like no time at all you hardly even knew him. This is what adult coparenting looks like. And yeah that's why I'm going to be in [the child]'s life so he doesn't have to" (Petitioner's Exhibit 7, p. 4). It was A.F. who was hostile to the mother when they first became acquainted with one another.

That afternoon when the father learned that the mother had contacted A.F., he called the mother repeatedly on the phone (Petitioner's Exhibit 7, p. 9). He also texted her incessantly and made several threats including, "Ok now I see your true colors," "I will be moving out tonight," "I will not stand for this I tried being real and honest with you," "I will pay my child support and let the courts handle the rest ," "I never want to see or talk to you again." and "Just a final FYI if you take out so [sic], born in New York across state lines without both of our consent it is federal kidnapping" (Petitioner's Exhibit 7, pp. 5-6).

Upon the father's return home from work on March 14, 2021, he offered to walk with the mother to get a cigarette. He strapped the child to his chest and began walking with her. He then began recording the mother with his phone. A copy of the video was admitted into evidence as Respondent's Exhibit B. The video shows the mother under the influence of alcohol, singing and clapping her hands at times. However, despite having just learned of the father's infidelity earlier that day, she did not display anger or aggression until near the end of the recording when she realized he was recording her. In the video the father stated he was recording her to protect himself in case she fell, claiming, "You've been falling all damn day." At that point, she grabbed for or swatted the phone away saying, "Get the fuck out of my face." The father then claimed, "You just hit him in the face you just hit fucking [the child] in the face, oh my God!" The video ends at that point. The video does not show whether the mother actually made contact with the child (or the father) when she attempted to stop the father from recording her. Regardless, the Court finds that the mother never intended to hit or harm the child. Likewise, the Court rejects the father's claim that the mother slapped the father three times in the face and punched him in the jaw with a closed fist during this incident.

Furthermore, the Court rejects the father's explanation for recording the mother and finds that the father recorded the mother in an attempt to gather evidence against her for use in anticipated custody proceedings now that she had uncovered his infidelity and lies. In fact, just several days later, on March 19, 2021, the father made a hotline to Child Protective Services about the mother's drinking and behavior on March 14th, which by every indication was an anomaly. He further repeatedly alleged in these proceedings that, "Petitioner is an alcoholic and violent when drunk." (See Counter-Petition and Amended Counter-Petition). The allegations that the mother is an alcoholic and that she is violent when drunk are not in any way supported by the evidence adduced at trial, and they are in fact contradicted by the father's own texts to the mother: "I never left and if I did I knew [the child] wasn't in danger. As I told the [sic] you are not a threat and a great mother. I just don't know you enough as we've never been drunk around each other and I saw that for the first time and that all I have to go on with [sic] your stories of breaking windows while drunk and what not. I can't apologize enough and won't anymore. I can't take things back or repair anything. My only focus is [the child]." (Petitioner's Exhibit 8, p. 2). "And no one is try [sic] to prove that your [sic] an alcoholic or dangerous. You can use this text as proof." (Petitioner's Exhibit 12).

Within the same text exchange, the father admitted to having lied to the mother: "You can't prove or even know how many times I lied about not being at work and again the courts don't give a shit about that. Is that all you got?" (Petitioner's Exhibit 8, p. 4). He also touted his connections to "the system": "Everything you said I've 'done' in a court of law doesn't and won't hold up as me being a bad or dangerous parent. I checked Several times with many attorneys and a judge. I do work for the system after all, NYS office of children and family services". (Petitioner's Exhibit 8, pp. 1-2). The Court found the father to be incredible throughout his testimony, but it does agree with the father that there is no way of knowing how many times he has lied.

Upon return to the apartment from the walk, the father again recorded the mother with his phone. A copy of this recording was admitted into evidence as Respondent's Exhibits H and I. The father testified that he made this recording for the purpose of proving to A.F. that he and the mother were not in a romantic relationship with one another even though they shared a child and were living together. In the video, the father uttered words to the effect that he and the mother had not been intimate with each other the entire time they had been together. However, the recording cuts off right after his statement. The father admitted on cross-examination that the mother neither confirmed nor denied his claim. Thus, the video failed to serve its intended purpose.

In the video, the mother apologized for her behavior that day, stated she had consumed too much wine that day, and expressed regret over contacting A.F. It should be emphasized that this was the same day the mother learned of the father's months-long infidelity and betrayal, realizing that the family they had created with the child would no longer be together. Yet the mother was apologizing to the father for her poor reaction to the news. The father, instead of apologizing to the mother for his behavior, told her that his ongoing and active concealment of the child's existence from A.F. was only "one lie," though admittedly "a woozy, a big one." He remained focused on the potential "fallout" to his relationship with A.F. and told the mother, "At this point, I'm not even sure I want to be your friend..." (Respondent's Exhibit H and I).

Later that same evening, the father left the apartment with the child. It was then that he took the child to meet A.F. for the first time. He returned that same night and dropped the child off to the mother. Before leaving and while holding the child, the father said to her, "You take a good hard look at him because you will never see him again. A.F. and I are going to raise him." The father then left the child with the mother and did not return for the rest of the night.

The court finds that the father's long-term infidelity, deceit, active concealment, threats, and gaslighting of the mother, as set forth above, amount to emotional abuse of the mother. The father also deceived A.F., who chose to stay with him after learning of the big lie. Throughout most of the mother's pregnancy and into the first several months of the child's life, the father actively hid from A.F. the very existence of the child whose relocation he later sought to thwart.

That same week, with the assistance of the maternal grandmother who travelled from North Carolina, the mother found an apartment five minutes away from the father's apartment and moved out. Following the move, the mother testified that she and the father came up with a parenting schedule whereby the father had three visits per week lasting three hours each, plus one overnight from Saturday to Sunday. Not even one month into this schedule, on April 7, 2021, the child came home from the father's apartment with a fresh bloody gash on his head. One week later, on April 14, 2021, the child came home from the father's apartment with a black eye. (Petitioner's Exhibit 9). During the exchange, the father quickly stated, "We had a snafu this morning. He fell out of a chair," and then left. The mother reported this to the DSS caseworker who was already working with the family as a result of the father's CPS hotline against the mother. The mother took the child to his pediatrician in Ithaca who then directed the mother to take the child to Rochester for further examination. Shortly thereafter, upon the encouragement of the DSS caseworker and doctor in Rochester, the mother filed her original Petition for Custody.

Though the injuries occurred while the child was in his father's care, this Court cannot determine from the evidence how the child was injured or whether it was the result of any neglect or abuse by the father or another person in his household. However, the Court does find that the father, having been served with the mother's Petition for Custody on April 19, 2021, retaliated against her by, later that very same day, making a complaint about the mother to the Ithaca Police Department regarding the March 14th episode which had occurred more than one month prior. (Petitioner's Exhibit 14-a). The Court also finds that the father intentionally provided the wrong photographs to IPD, sending photographs of the child that had been taken on February 16, 2021, and March 1, 2021, when his complaint centered on the events of March 14, 2021. The mother provided to IPD a photograph of the child taken on March 15, 2021, showing no injury to the child and thus refuting the father's claim that the mother had injured the child on March 14, 2021. No criminal charges were pressed against the mother.

This fact-finding hearing commenced on October 14, 2021. At that time, and throughout the fall of 2021, the father had parenting time with the child on Tuesday evenings from 5:30-8:30 p.m., on Wednesday evenings from 5:30-8:30 p.m., and on the weekends from Friday at 5:30 p.m. until Monday morning. At this time, the father was residing with A.F. at an apartment on Ellis Hollow Rd. in Ithaca. They had been residing there since June of 2021. They were both tenants under the lease. The monthly rent was $1,495, and A.F. testified that they each contributed equally to their expenses. The father testified that he works three jobs: he works as "Director of Surveillance and Information Technology" for the New York State Office of Children and Family Services at Finger Lakes Residential Center Mondays through Fridays from 9:00 a.m. to 5:00 p.m. (earning $44,000 per year), he works for United and Delta Airlines at the Ithaca Airport on the weekends (earning $10,000 per year), and he sometimes works for Ithaca Fitness Gym (earning $3,000 per year). The father admitted that he does not pay any child support for the child. He admitted that he did not take any FMLA leave to assist in caring for the child following his birth. He testified that in the fall of 2021 he began to cover the child and A.F. under his medical insurance through his job with OCFS.

The mother is seeking relocation with the child to North Carolina where she has a strong support network including her mother, stepfather, grandparents, brother, aunt, and friends. She testified - and the Court finds - that she is in a "financially impossible situation" here in Tompkins County now that she and the father are no longer living together. She rents an apartment in Ithaca and cannot afford to pay the rent on her own. She relies upon and receives assistance from her own mother to make her monthly rent payments. She cannot afford daycare for the child and therefore only works weekend nights when he is in his father's care. She works 15 to 20 hours per week for American Airlines at the Ithaca Airport. She does not receive, nor has she ever received, child support from the father. If permitted to relocate to North Carolina with the child, she would live rent-free in the maternal grandmother's home. She would also receive free childcare from her relatives and friends who live nearby.³

Furthermore, both the mother and father have access to free and discounted air travel because they both work for airlines. As part of their employee benefits, they can fly standby any time they like so long as there is an open seat on the plane. This benefit extends to the child as well. The mother testified that she and the child can fly for free on American Airlines and that they can fly at discounted rates on other airlines. If allowed to relocate to North Carolina, the mother testified that she would keep her job with American Airlines and transfer her work location (back) to Wilmington. She testified that she would keep the father on her flight benefits. The father has similar benefits of his own with the two airlines he works for. There are flights from Ithaca to Charlotte, North Carolina, and from Charlotte to Wilmington, totaling less than four hours of travel time between Ithaca and Wilmington. The mother testified that the father would be welcome to visit the child in North Carlina.

Up until the eve of the final day of the fact-finding hearing on January 21, 2022, the father opposed the relocation. He testified that he would "never be able to see [the child]" if the mother were permitted to move to North Carolina with him. This claim was belied by his own testimony that he has flown standby "probably over 100 times" in the five or six years he has worked for the airlines. In fact, the child was conceived in St. Thomas where both parties flew using their flight benefits. Again, the father was not credible.

Much of the father's opposition to the proposed relocation centered around his job with OCFS. He testified that his ability to fly to North Carolina to see the child would be restricted by his OCFS work schedule. He testified that he would not be able to relocate to North Carolina himself because he had "built up benefits" with OCFS after 15 years of employment there that could not be transferred to another job. He testified repeatedly on October 15, 2021, October 27, 2021, December 3, 2021, and December 8, 2021 about his OCFS job, his weekly schedule and salary there, and the medical insurance he had secured for the child through that job.

On December 16, 2021, counsel for the mother filed an Order to Show Cause seeking to reopen the proof.⁴ The mother had learned from a third party that the father was no longer employed with OCFS. On December 23, 2021, the father testified that he was terminated from his OCFS job on December 9, 2021, by verbal notification from supervisor D.H. due to attendance issues. He testified that this was the first time he learned of his termination. He also testified that he had another job with New York State lined up as he was previously offered a position back in February of 2021, and that this employment offer was subject only to a civil service exam. The Court rejects the father's testimony as it was wholly incredible.

On January 21, 2022, D.H. of OCFS testified before the Court. The Court found D.H. to be completely credible. He testified that he approached the father while he was working at Finger Lakes Residential Center on the morning of December 2, 2021. On that date, he met with the father in the conference room across from D.H.'s office and informed the father that his employment with OCFS was "done" effective the beginning of business on December 3, 2021. D.H. handed the father a termination letter admitted into evidence as Petitioner's Exhibit 31. D.H. testified that the father read the letter to himself and then asked, "I don't even get a warning about my time and attendance?" The father left the letter on the table in the conference room, packed up his office, and was escorted out of the building, clocking out at 12:05 p.m. on December 2, 2021. That was the end of the father's employment with OCFS and Finger Lakes Residential Center.

The Court finds that the father committed perjury before this Court when he repeatedly testified about his OCFS employment, weekly schedule, salary, and medical insurance on both December 3, 2021, and December 8, 2021 - after he was terminated from that job on December 2, 2021. He also committed perjury on December 23, 2021, when he repeatedly testified before this Court that he was terminated on December 9, 2021.

Further, the Court takes judicial notice of related family offense proceedings filed in this Court. On January 4, 2022, A.F. filed a Family Offense Petition against the father. Pursuant to the petition, this Court issued a full-stay away temporary order of protection in favor of A.F. and against the father. This order removed the father from the apartment he was sharing with A.F. On January 6, 2022, the father filed his own Family Offense Petition against A.F. The Court denied the father's request for a temporary order of protection and firearms surrender order. A.F. and the father each allege domestic violence — perpetrated by the other - in their shared apartment. This was the same apartment where the child would spend weekends and overnights during the father's parenting time.⁵

On January 7, 2022, after learning about these related proceedings from A.F., the mother filed an Order to Show Cause. The Court granted the mother's Order to Show Cause, allowing the mother to temporarily relocate with the child to North Carolina pending completion of the instant proceedings. This Court's Order also suspended the father's in-person visitation with the child until further court order.

On January 20, 2022, counsel for the father indicated in written correspondence to the Court that the father had changed his position, now consents to the mother's relocation with the child to North Carolina, and in fact plans to move to North Carolina himself. An off-the-record attorneys conference was held at the start of the final date of the fact-finding hearing on January 21, 2022. Once on the record, counsel for the father advised that the father had just fired her and walked out of her office. Counsel for the father sought relief from her representation, however the request was denied. The fact-finding hearing was completed in the father's absence.

CONCLUSIONS OF LAW

"Any court in considering questions of child custody must make every effort to determine 'what is for the best interest of the child, and what will best promote [his or her] welfare and happiness' [internal citations omitted]." Eschbach v. Eschbach, 56 NY2d 167, 171 (NY 1982). "In determining the best interests of a child, a court must consider various factors, including 'the parents' ability to provide a stable home environment for the child, the child's wishes, the parents' past performance, relative fitness, ability to guide and provide for the child's overall well-being, and the willingness of each parent to foster a relationship with the other parent' [internal citations omitted]." Herrera v. Pena-Herrera, 146 AD3d 1034, 1035 (3rd Dept. 2017).

Further, the courts have held that where there is an "acrimonious relationship" and poor communication between the parties, joint custody is inappropriate. See Shearer v. Spisak, 90 AD3d 1346, 1347 (3rd Dept. 2011); Tylaeya C. v. Karl S., 187 AD3d 402 (1st Dept. 2020). In such cases, it appropriate to award sole custody to the parent who has been the "primary caregiver" to the child or children and to the parent who has "demonstrated a willingness to foster a relationship between the child and [the other parent] " Keen v. Stephens, 114 AD3d 1029, 1031 (3rd Dept. 2014).

Here, the mother has always been the primary caregiver to the child. She is a fit, loving, and appropriate parent. Despite financial challenges (including having never received child support from the father), the mother has provided the child with a stable home environment throughout his life. She has continued to foster the child's relationship with his father, notwithstanding the father's infliction of emotional abuse upon her.

By contrast, it is apparent, based upon the father's conduct throughout the trial and the Court's findings of fact and credibility determinations, that the father is not presently fit to assume custodial responsibilities of the child. With the issuance of this Court's temporary full stay-away order of protection against the father and in favor of A.F., the father lost his housing. He also lost his main form of employment when he was terminated from his OCFS job due to poor attendance. His treatment of the mother and the threats he has repeatedly made against her demonstrate that he would not foster the child's relationship with her. Furthermore, the father's conduct toward the mother and others around him demonstrates a lack of ability to appropriately guide the child as he grows. While the mother and the Attorney for the Child believe that the father should have visitation — and the Court finds that it is in the child's best interests for the father to have visitation — it is necessary for the mother to have all of the say in the particulars of his visitation until the father develops the skills necessary to engage in an appropriate co-parenting relationship.

Turning to the issue of whether the mother should be permitted to relocate to North Carolina with the child, the Court of Appeals has held that, "the courts should be free to consider and give appropriate weight to all of the factors that may be relevant to the determination [of relocation]. These factors include, but are certainly not limited to each parent's reasons for seeking or opposing the move, the quality of the relationships between the child and the custodial and noncustodial parents, the impact of the move on the quantity and quality of the child's future contact with the noncustodial parent, the degree to which the custodial parent's and child's life may be enhanced economically, emotionally and educationally by the move, and the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements. In the end, it is for the court to determine, based on all of the proof, whether it has been established by a preponderance of the evidence that a proposed relocation would serve the child's best interests." Matter of Tropea v. Tropea, 87 NY2d 727, 740 (1996). Furthermore, when a court is making "an initial custody determination, it is not necessary to adhere to a strict application of the relevant factors to be considered in a potential relocation as enunciated in Matter of Tropea v. Tropea [internal citations omitted], and the Family Court's determination should be accorded deference unless it lacks a sound and substantial basis in the record [internal citations omitted]." Lynch v. Gillogly, 82 AD3d 1529, 1530 (3rd Dept. 2011).

It is clear from an application of the Tropea factors - and all relevant considerations - that it is in the best interests of the child for the mother to be permitted to relocate to North Carolina with him. This Court finds that the mother's reasons for seeking the move are sound and sincere. By moving to an area with a strong support system of numerous extended family members, the child's life will be enhanced economically and emotionally. Housing and childcare will be provided for free by the mother's relatives and friends, allowing her to work more hours and earn more income than she was able to here. In addition, the child will enjoy a closer relationship with those family members. The quality of the child's relationship with his father will be adequately preserved because both parents are uniquely situated through their employment with the airlines to receive free and discounted airline travel, making regular visitation feasible. Finally, prior to completion of these proceedings, the father stated his consent to the relocation and his intention to move to North Carolina himself.

The parallels between this case and the case in Lynch v. Gillogly (Id.) are striking. There, the mother had always been the primary caregiver to the subject child. The father "grossly deceiv[ed] his wife for a protracted period of time about his continuing affair and expected child with" in that case, the mother. Id. at 1531. After the parties' relationship ended, the father began recording his interactions with the mother (in that case, secretly) and "greatly reduced his financial support" of the mother and child. Id. There, the Third Department deferred to the Family Court's assessment of credibility and affirmed the lower court's decision and order awarding sole custody to the mother and permitting her relocation with the child.

Here, it is appropriate to award the same relief to the mother. She has always been the child's primary caregiver and has provided him with a stable home environment throughout his life. She is the only parent who has proven the ability and willingness to foster the child's relationship with the other parent. By contrast, the father lacks financial and residential stability. His conduct, throughout both the child's life and these proceedings, has demonstrated that he is presently unfit and unable to guide or provide for the child's overall well-being. Furthermore, the mother's relocation to North Carolina with the child will enhance his life in significant and numerous ways while preserving his relationship with the father. As such it is hereby:

ORDERED, that the mother shall have sole legal custody and primary placement of the subject child; and it is further

ORDERED, that the mother is permitted to permanently relocate to the State of North Carolina with the child; and it is further

ORDERED, that the father shall have parenting time with the child as the mother agrees, and that the mother shall not unreasonably withhold the same; and it is further

ORDERED, that the father's visits shall not take place more than 30 miles outside of the county in which the mother lives; and it is further

ORDERED, that the father shall not have overnight visitation with the child until the father has established six months of successful daytime visitation; and it is further

ORDERED, that the father shall have full, complete, and independent access to the medical, childcare, and educational records and providers of the subject child, to include the right to attend the child's medical appointments; and it is further

ORDERED that in regulating their own behavior, the parties shall consider the following "rights of a child whose parents are separated (adapted from the Parent's Handbook of the New York State Parent Education and Awareness Program — 2016):

1. The right not to be asked to "choose sides" between their parents.

2. The right not to be told any details of the legal proceedings going on between their parents.

3. The right not to be told "bad things" about the other parent's personality or character.

4. The right to privacy when talking to the other parent on the telephone.

5. The right not to be interrogated by one parent about the other parent.

6. The right not to be asked to carry messages between parents.

7. The right not to be asked by one parent to tell the other parent untruths.

8. The right not to be used as a confidant regarding adult matters.

9. The right to express feelings, whatever those feelings may be.

10. The right to choose not to express certain feelings.

11. The right to be protected from parental "warfare."

12. The right not to be made to feel guilty for loving both parents.

Enter: February 1, 2022

__________________________

Ithaca, New York

Hon. Scott A. Miller

Family Court Judge

FOOTNOTES

1.   The father testified that he had fallen behind on rent because he was going through a divorce from A.W. and was paying three attorneys to litigate in "family court, divorce court, and criminal court."

2.   Several months earlier, the mother had discovered erectile dysfunction medication in the father's jacket that she had never seen him use before. She thought this was strange since she had not yet been cleared by her doctor to resume having sexual intercourse after the child's birth. This led to an argument during which the father repeatedly called the mother a "cunt" and claimed, "You haven't touched me since April."

3.   The Court heard credible testimony from both the mother and the maternal grandmother D.G. on these points.

4.   The fact-finding hearing originally concluded on December 8, 2021, but was re-opened pursuant to the mother's Order to Show Cause. Additional testimony was taken on December 23, 2021, and January 21, 2022.

5.   As of the date of this Decision and Order, both petitions remain pending.

Scott A. Miller, J.