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IN RE: a Custody Proceeding Under Article 6 of the Family Court Act Anna AQUITANI, Petitioner, v. Caleb AQUITANI, Respondent.
Petitioner Anna Aquitani (hereinafter “the mother”) and Respondent Caleb Aquitani (hereinafter “the father”) are the parents of the subject child Connor Aquitani (date of birth: XX/XX/14).1
This action commenced with the mother's filing of an Article 8 Family Offense Petition and an Article 6 Modification Petition on January 2, 2020. Following an ex parte appearance with the Petitioner on the same date, the Court issued a full stay-away temporary order of protection against the father in favor of the mother and child. On January 21, 2020, both parties appeared before the Court with counsel. The Court vacated its temporary order of protection and granted the father parenting time several times per week.
Six days later, on January 27, 2020, the mother filed another Article 6 Modification Petition, this time by Order to Show Cause, seeking to suspend the father's visitation due to a CPS hotline involving an allegation that the father sexually abused Connor 2 . Pursuant to this filing, the Court again suspended the father's visitation on January 28, 2020. On February 10, 2020, the parties appeared before the Court with counsel. The father opposed the mother's petition. Both parties were questioned under oath. At the conclusion of the proceeding, the Court vacated its January 28, 2020 Order and reinstated the parties’ prior shared placement week on/week off schedule.
On February 11, 2020, the father filed an Article 6 Modification Petition by Order to Show Cause setting forth concerns about the mother's mental health, erratic behavior, substance abuse, and history of fabricating allegations both against the father and John Dean, the father of her other two children. On February 14, 2020, pursuant to the father's filing, the Court ordered supervised visitation for the mother, restricted her parenting time to two four-hour visits per week, ordered her to undergo a substance abuse evaluation, and ordered her to undergo a mental health evaluation. On March 2, 2020, the mother filed an Answer and Affidavit in Opposition to the father's Order to Show Cause.
Over the pendency of the case, several more Orders to Show Cause were filed. The Court conducted a two-day evidentiary hearing on June 29, 2020, and June 30, 2020, for the purpose of determining an appropriate interim order. At the conclusion of the hearing, the Court removed the supervision requirement on the mother's visits and expanded her parenting time, while continuing sole legal custody and primary placement with the father.3
A Fact-Finding Hearing was conducted by the Court on December 9, 2020, December 18, 2020, January 12, 2021, February 16, 2021, July 1, 2021, July 23, 2021, and February 10, 2022. The mother was represented by Attorney Chad Hammond, the father was represented by Attorney Kelly A. Damm, and the child was represented by Attorney Angelica Parado-Abaya of Citizens Concerned for Children, Inc. The Court heard testimony from Karrie Monroe, Diane Tripodi, Susan Funicelli, LMSW, Katie Peters, LMSW, Beth Lovejoy, LMSW, John Dean, Brian Driscoll, and the parties. Petitioner's Exhibits 1, 2, 4, and 6 through 23 were received into evidence. Respondent's Exhibits A through T, V, X, Y, BB, CC, DD, EE, II, KK, LL, NN, OO, RR, and SS were received into evidence. The Court took judicial notice of all prior Tompkins County Family Court orders, FCA § 1034 reports filed with the Court, and testimony given during the prior two-day evidentiary hearing.4 On February 16, 2021, at the conclusion of the Petitioner's case, the Court dismissed the mother's Article 8 Family Offense Petition for legal insufficiency, leaving pending each party's Article 6 Modification Petitions. Prior to this Fact-Finding Hearing, there had never been a plenary family court hearing between these parties.
A Lincoln Hearing was conducted with the child and AFC on March 2, 2022. The Court reviewed the final written submissions of the father's counsel dated April 22, 2022, and the Attorney for the Child dated April 29, 2022. The mother's attorney did not file a final written submission.
The Court searched the statewide registry of orders of protection, the Sex Offender Registry, and the Family Court's child protective records, and has notified the parties and the attorneys of the results of these searches.
FINDINGS OF FACT
The fact-finding portion of these proceedings encompassed nine days of testimony, nine witnesses, and 55 exhibits. At first blush, one would think this Family Court is confronted with a task of such magnitude and complexity that all of the Court's finely tuned tools of discernment must be brought to bear in order to arrive at a properly constructed conclusion. Not so. What the Court has before it is a matter of utter simplicity. When all the superfluous is removed (and there was much), what is left is a simple truth. The father is a loving, fit, and excellent parent to the parties’ now seven-year-old son Connor. The father has always been willing to engage the mother in co-parenting and continues to be willing to facilitate a loving relationship between Connor and the mother. The mother, however, is incapable of setting aside her animosity towards the father, and because of this she has consistently engaged in a pattern of making false allegations of child abuse against the father. The mother - in spite of an absence of evidence, and, in fact, evidence to the contrary - refuses to believe that the father is a good father and instead remains steadfast that the father has subjected the child to both physical and sexual abuse. In short, although this case presents the Court with extreme allegations, resolution of these allegations was nonetheless extremely easy.
The Court closely observed the testimony of the father and the mother over many days of trial. The father was credible in every respect. He presented as a loving, engaged, self-aware, deeply reflective, and mature parent who genuinely places Connor's interests as paramount. He understands his strengths and weaknesses and is more than fit to be a custodial parent and role model to his son. The mother for the most part, on matters of significance, was not credible. She demonstrated little insight into her own shortcomings, has shown no growth as a co-parent, can only see the father in a negative light, refused to withdraw her baseless abuse allegations against the father, and demonstrated she will neither facilitate nor encourage a relationship between the father and the child. Furthermore, the mother associates with at least two adult men who have, at the mother's encouragement, threatened to harm the father because of this ongoing litigation.
The mother's behavior is nothing new. The mother has demonstrated a pattern that when she is angry with the man with whom she is in a relationship, she weaponizes their children either to inflict revenge or to gain control. When the mother became angry at her ex-husband Mr. Dean, the father of her older children, she also engaged in the same pattern of making false allegations during the course of family court litigation in an effort to gain a custodial advantage. Her false allegations failed in the past. They have failed again.
The case before the Court can best be summarized by one exhibit - Respondent's Exhibit CC, which is a photograph of the mother's fake “black eye” she created with make-up. The mother previously disseminated this photograph in an attempt to fabricate allegations of assault against the father. The falsity of this past scheme was quickly uncovered. Nothing has changed.
Caleb Aquitani, the father, has endured years of the mother's false allegations. When the father was informed by CPS that he was accused of sexually abusing Connor, he understandably began to cry. The father was clear, convincing, and completely credible to this Family Court when he testified that he never had nor would he ever harm or abuse his son. The mother failed to present a scintilla of credible evidence to support her allegations of abuse. Connor is known to have a big imagination, and the CPS investigator confirmed that any allegation made by Connor could not be taken as true based on the fact that Connor told such wild fantastical tales (e.g., Connor, at age five, claimed that he smoked cigarettes and drank alcohol). In short, it was quickly confirmed that Connor is a young boy with a huge imagination. The father is in tune with his son's prodigious imagination. The mother is not. The Court, however, does believe that Connor did in fact tell his father that, “Mommy wants me to tell stories so I can I live with her.” This particular out-of-court statement attributed to Connor had the unmistakable ring of truth to it and was the only such out-of-court statement corroborated by other evidence. FCA § 1046. The fact-finding evidence clearly demonstrated that the mother's pattern of behavior is that when she is angry with the father, she fabricates allegations of abuse and encourages their son to “tell stories” about the father.
The father lives with his fiancée Cathy, as well as the children in their household: Connor, Cathy's son William, and their two young children together, Alex and Nicole. The father is employed in construction and Cathy owns her own business. The father did not hide his past. He admitted that he did have prior criminal convictions over the last 20 years for theft, assault, and burglary. He spent some time in state prison. The father and mother married in 2016. In 2017, while living in Clinton County, the marriage began to breakdown, and without notice, the mother disappeared with Connor, without even leaving the father a note. She eventually returned and they agreed they would try to work on their relationship. The mother only stayed for a week and again left without warning, taking Connor with her. Family Court proceedings were initiated by the father in Clinton County, which resulted in a consent agreement. Respondent's Exhibit DD. The mother, in a Clinton County Family Offense proceeding, had claimed that the father had threatened to burn down her house with her children in it. That family offense proceeding was dismissed as part of the parties’ settlement agreement. Respondent's Exhibits DD and X. This Court notes that here in this first plenary hearing between the parents, no credible evidence was presented by the mother that the father ever actually made such a threat. This Court believes the father and finds that he never threatened the mother and that her alleged arson threat was a false allegation in an attempt to gain leverage against him in the prior Clinton County Family Court custody proceedings.
The father explained that the mother's litany of allegations - that the father threatened arson, that he molested Connor, and that he hit Connor with a baseball bat - was the same pattern of false allegations she employed against John Dean, her ex-husband and father of her two older children Keith and Gina. The father credibly explained, “Every time she felt she didn't have John strung around her finger, she would report him. She accused him of molesting” their children.
During the period that the family court litigation was pending in Clinton County, the mother alleged that the father had assaulted her, and she disseminated a digital photograph of her face depicting what she purported to be a black eye caused by the father. It was the father who offered this photograph into evidence in the instant proceedings. Respondent's Exhibit CC. The mother admitted to the father that she had googled how to create a black eye with make-up. The mother had threatened to use this photograph in the Clinton County litigation but never followed through. Even a cursory examination of Respondent's Exhibit CC reveals why the mother never entered it into evidence during the Clinton County litigation; it is an obvious and amateurish fake. The father, wisely, entered the photograph into evidence here in order to corroborate the allegations in his modification petition that the mother has a pattern of falsely accusing him of misconduct. The mother never offered any rebuttal to Respondent's Exhibit CC. She essentially conceded that it was a fake. The mother offered no credible evidence during the trial that the father had ever hit, pushed, struck, harmed, or threatened her in any way. The Court believed the father. There is no credible evidence that the father ever harmed or threatened to harm the mother (or their son).
After resolving the Clinton County Family Court proceedings with a consent Article 6 order, and without ever having a plenary hearing, the parties relocated to Tompkins County, although they both maintained separate residences. Soon they deviated from the consent order (Respondent's Exhibit DD) and began sharing Connor equally for the most part. In fact, the father was the primary caretaker of Connor from August 2018 until January 2019.
The father consistently has attempted to work with the mother in order to co-parent Connor. As the father explained, “It's never been about my personal feelings towards her. It's always just about what's good for Connor. Once she can see that, I think we'll be both better parents.” The father encourages and facilitates Connor's relationship and communication with his older half-siblings, Keith and Gina, and he always lets Connor talk to them.
While in a hopeful world the father wished he could co-parent Connor with the mother, he candidly stated, “We don't coparent at all right now.” And added, “It's not that I won't co-parent. It's not that I don't have the ability. I can and I will. But I can't make that happen just me.”
It was apparent from the trial that the father and Mr. Dean have a cordial (not quite friendly) relationship, motivated not out of animosity towards the mother, but out of a genuine desire to foster a relationship between Connor and Keith and Gina. Mr. Dean and the father's ability to move past old relationships and concentrate on what is best for the children should serve as an example to the mother.
The father did not deny his shortcomings. He admitted to the “Optimus Prime” incident where he and Cathy placed a recording device in Connor's favorite Optimus Prime costume in an attempt to record the mother's conversations with Connor during his time with her. The mother discovered the recording device. While the Court cannot condone further attempts to surreptitiously record conversations between the mother and the child, the father's actions were the result of the onslaught of false allegations made by the mother and the likelihood that the mother was encouraging the child to make up stories against the father.
Two male friends of the mother have threatened the father during the pendency of this litigation. Timothy Buck sent threatening messages to the father. Respondent's Exhibit RR. Mr. Buck's probation officer Brian Driscoll testified that Mr. Buck was in fact on probation at the time he sent the threatening messages to the father. Another of the mother's associates, Matthew Caswell, also texted threatening messages to the father. Respondent's Exhibit SS. Additionally, “Roy,” a friend of Mr. Buck and Mr. Caswell, while intoxicated, approached the father at a gas station and displayed a firearm. Incredibly, the mother tried to distance herself from Mr. Buck, asserting that he is one of the father's friends - not hers. The Court did not believe her. The record is clear that the mother has a close and intimate friendship with Mr. Buck, who occasionally spends the night at her home, even while Connor is present. The Court is confident Mr. Buck's unprovoked threats against the father is at either the direct or indirect prompting of the mother. This is not an individual whom the mother should permit to be around Connor.
As recently as January 2022 the father has had to respond to yet another CPS report that he was accused of “chaining and beating” Connor. CPS Investigator John Lopinto investigated these allegations and deemed them, unsurprisingly, unfounded.
The mother did not prove any of the allegations in her family offense and modification petitions. Most troubling, when confronted with the fact that there was no evidence - and in fact evidence to the contrary - with respect to her allegations that the father harmed Connor, the mother simply refused to acknowledge such and maintained her unsupported position that she simply believes that the father has abused their son.
The evidence presented by the mother in support of her Family Offense petition concerning an alleged altercation at the father's residence while Connor was purportedly present was legally insufficient, and the Court granted the Respondent's motion for a trial order of dismissal at the close of the mother's proof. The only evidence in support of the mother's Family Offense Petition was from Katherine Mathers, the father's sister. Ms. Mathers, who had only recently re-established contact with her brother after a period of estrangement, testified about being present during an argument between the father and his fiancée, Cathy. Ms. Mathers briefly witnessed an argument between Caleb and Cathy. Ms. Mathers reported she “heard arguing” coming from inside the house, and when she knocked on the door, Caleb let her inside. She observed Connor and Alex present in the room as well. Ms. Mathers testified that she observed Caleb and Cathy engaged in a mutual physical fight over Alex who was still half-way buckled into his car seat. Ms. Mathers testified that at one point, Caleb “pushed Cathy down onto the couch.” Cathy then went upstairs and stated she was going to call the police. Cathy would not allow Ms. Mathers to take Alex but did allow her to take Connor to her car where he watched a movie. Law enforcement was never called.
Counsel for the father moved to dismiss the Family Offense at the close of the mother's proof. The Court stated that the evidence was legally insufficient and the Family Offense must be dismissed. The Court notes that the mother did not witness the alleged fight, and the Court could not consider any alleged out-of-court statements attributed to the child by the mother as FCA § 1046 is inapplicable to Article 8 proceedings. Kristie GG. v. Sean GG., 168 AD3d 25 (3rd Dept. 2018). There was simply no view of the evidence that any family offense had been committed against the child, Connor, during the mutual argument between the father and Cathy during which Connor was merely briefly present. Cathy did not file the Family Offense petition, and the mother had no standing to file one on Cathy's behalf. There was no testimony that Connor even observed, reacted to, or was impacted in any way by the mutual argument between the father and Cathy. Furthermore, the Court did not find Katherine Mathers credible. Viewing the evidence “in the light most favorable to the mother,” there was insufficient proof of Harassment in the Second Degree or Disorderly Conduct, or any other family offense as checked off in the mother's Article 8 petition. Evelyn EE. v. Lorraine B., 152 AD3d 915, 918 (3rd Dept. 2017)
In any event, had the Court not dismissed the Family Offense due to legal insufficiency at the close of the mother's proof on the Article 8, the Court finds that there was not a preponderance of the credible evidence that the father committed any family offense in the presence of Connor as alleged by the mother's Article 8 petition. And as further detailed throughout this decision, the mother failed to present any credible evidence that the father has ever threatened the mother or their child.
The mother failed to provide a scintilla of evidence that the father had physically or sexually abused Connor in any way. The mother conceded that Connor has never made any claim to her that the father ever touched him a sexual way. “Connor has not made any sexual statements to me.” When asked what statements of abuse Connor made, she claimed, “Um, he has told me that dad has hit him, um, with a baseball bat I was giving Connor a bath, and I noticed huge bruise on his back. I asked what happened. He said, ‘They did it.’ I asked, ‘Who's they?’ He said, ‘Dad. Well, not Dad William.’ ” That was the extent of the mother's evidence. An incredulous claim of a baseball bat bruise at first claimed to have been made by the father then immediately corrected to his half-sibling, William, who is about one year older than Connor. Nonetheless, in the absence of any evidence or corroboration, the mother insisted, “I do believe Caleb is abusing Connor.”
The mother further undermined her own credibility when questioned about her fake “black eye.” The mother would not even fully concede that the photo was her, and only agreed, “That looks like me in the picture.” The Court finds, unequivocally, Respondent's Exhibit CC is a photograph of the mother. The mother denied faking the black eye. When asked if it was a real black eye, the mother again, in a failed effort at misdirection, answered nonresponsively, “I don't recall ever testifying against the black eye.” But when asked if she was claiming it was a real black eye, she stated, “It looks like someone enhanced it, so no.” The Court finds that that someone was the mother.
Tompkins County Department of Social Services Senior Case Worker Rebecca Acosta did not provide any support for the mother's allegations that the father had abused Connor. In fact, just to the contrary, she explained that, “Connor was saying clearly untrue things at other points in the interviews. He was telling stories of himself drinking and smoking.” Connor, whom even objective reporters such as Sr. Inv. Acosta reported has a farfetched imagination, was the only proof the mother needed. When asked why she let the bruise on Connor's back lead to a hotline rather than first simply communicating with the father, the mother answered, “I don't feel comfortable contacting him.” The Court finds that it is the mother's animosity towards father that colors and taints her every perception. This is contrary to the best interests of Connor.
The mother is aware of how to make a hotline report against the father without her directly having to be the source of the report. For example, the mother sent her mental health counselor, Katie Peters, a photo of a bruise on Connor's back and the mother told Peters that she was “worried that dad is abusing Connor.” Of course, because Peters is a mandated reporter, she subsequently made a hotline, giving the mother plausible deniability as to being the direct source of the hotline.
The father, throughout the fact finding, provided credible and convincing corroboration of his assertion that the mother's accusations that he abused their son were not merely false but were the mother's modus operandi when attempting to gain leverage and control against a father of one of her children.
The father's credible testimony and the mother's obvious prevarication would have been enough for this Court to reach the conclusion that the father proved by a preponderance of the credible evidence that he never harmed his son, that the mother's allegations were false, and that, furthermore, the false allegations were motivated by the mother's animosity toward the father. However, the father presented more than just his credible testimony and his counsel's cross-examination of the mother. The father entered Respondent's Exhibit CC into evidence. The father entered text messaging threats from two of the mother's male friends into evidence. Respondent's Exhibits RR and SS. The Tompkins County DSS Senior Caseworker Acosta clearly opined that young Connor had a wild imagination and told incredulous tales such as engaging in smoking and drinking. And the mother, when confronted with a complete absence of evidence of any abuse continued to hold fast to her baseless claim that the father is abusing their son.
All of this would have been more than enough, but the father's convincing and credible proof did not end there. Mr. John Dean testified. Mr. Dean and the mother were married from 2005 to 2011. They have two children together, Keith and Gina, currently aged 14 and 11. Mr. Dean has primary custody of the children in Virginia and the mother has visitation here in New York either over Christmas or spring break when the children are on school break and also a majority of the summer break. However, the mother only exercises about half of her permitted visitation with Keith and Gina.
Mr. Dean testified that the mother, during custody proceedings against him, also alleged that he mistreated and molested both of their children. Mr. Dean credibly testified that the abuse never happened and that CPS investigated and deemed the accusations unfounded. Mr. Dean credibly testified that although the mother had lodged the false allegations in order to gain custody, he was awarded sole legal custody of both children. Respondent's Exhibit NN.
Perhaps most damaging to the mother's case was Mr. Dean's testimony concerning Respondent's Exhibit CC. Mr. Dean recognized the photograph and confirmed it was in fact Anna Aquitani. Mr. Dean testified that in 2017 when the mother was staying with him in Virginia, she admitted to him that it was in fact make-up on her eye. She had sent the phony image to her employer claiming that she was being abused by Caleb and used this as the reason she had to suddenly leave her job in New York.
In fact, Mr. Dean was the one who actually provided Respondent's Exhibit CC to the father. Mr. Dean had nothing to gain with his testimony. He already has sole legal custody of Keith and Gina, and in fact, Mr. Dean's participation in this particular trial most likely will not help improve the communication he has to have with the mother in order to coordinate the mother's visitation with their children. Mr. Dean credibly explained he is not friends with Caleb Aquitani but he messages him every once in a while when it involves his children, Keith and Gina.
Mr. Dean not only corroborated Respondent's Exhibit CC's falsity, but also presented compelling, credible, and convincing evidence that the mother resorts to false allegations of physical and sexual abuse when attempting to assert legal control in the parental relationship.
The Court agrees with the Attorney for the Child's assessment that:
[The mother's] “mental health has become unstable since the entry of the Custody and Stipulation Order entered on July 25, 2019, that she has become obsessive about her allegations of abuse that she truly believes that believes [sic] that Caleb sexually abused Connor despite their [sic] being no proof of it, despite the fact that Connor has a big imagination and is known to exaggerate. Her need for therapy has increased to weekly sessions. She even needed crisis intervention. We believe that she fabricated the allegations she made against Mr. Dean and those she made against Caleb, the father of our client.” AFC Closing Statement at pp. 6-7.
This Court finds that the credible and convincing evidence (more than a mere preponderance of the evidence) established that Caleb, the father, has never subjected Connor to any physical or sexual abuse. The Court further finds the allegations were fabricated by the mother.
CONCLUSIONS OF LAW
The mother failed to prove any of the allegations in her family offense and modification petitions and consequently the Court is dismissing all of the mother's petitions. The father's modification petition is granted and requires further discussion.
Before the Court can address any best interests analysis, further explanation concerning one of the evidentiary rulings made during the course of the fact finding warrants more detailed discussion. The Court ultimately, and over the mother's objection, received the testimony of Mr. Dean in which he detailed a similar pattern of the mother making false allegations of child sexual abuse against him in the context of custody proceedings. The Court found that Mr. Dean's testimony was highly credible, convincing, material, and relevant to the issues before the Court in this matter.
A party proffering evidence of a claimed prior false allegation by the opposing party against a third party must satisfy one of two preconditions to admissibility, namely, the party is “required to demonstrate that the prior complaint was false or that it was ‘suggestive of a pattern that cast[s] doubt on the validity of, or b[ears] a significant probative relation to, the instant charges.’ ” People v. Catalan, 204 AD3d 1240,1243 (3rd Dept. 2022), quoting, People v. Lane, 47 AD3d 1125, 1128 (3rd Dept. 2008). Here, the father actually satisfied both evidentiary preconditions. The father demonstrated through a preponderance of the credible and convincing evidence both that the mother had made prior false allegations of child abuse against her ex-husband and that the mother's prior false allegations against Mr. Dean demonstrated a pattern of behavior that clearly cast doubt on her credibility and the credibility of the current allegations against the father in the matter before this Family Court. See, People v. Diaz, 20 NY3d 569 (2013).
“A party seeking to modify a prior order of custody must show that there has been a change in circumstances since the prior order and, then, if such a change occurred, that the best interests of the child would be served by a modification of that order” (Matter of Leah V. v. Jose U., 195 AD3d 1120, 1121, 150 N.Y.S.3d 133  [internal quotation marks and citations omitted]; see Matter of Patrick UU. v. Frances VV., 200 AD3d 1156, 1158—1159, 160 N.Y.S.3d 367 ). Devin W. v. Jessica X., No. 530819, 2022 WL 1037792, at *1 (NY App. Div. Apr. 7, 2022).
“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 (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). The courts have routinely held that it is appropriate to grant custody and/or placement to the parent that is better able to provide stability for the child taking into consideration factors such as employment, living situation, transportation, and substance abuse. See Rundall v. Rundall, 86 AD3d 700 (3rd Dept. 2011); Darrow v. Darrow, 106 AD3d 1388 (3rd Dept. 2013); Sweeney v. Sweeney, 127 AD3d 1259 (3rd Dept. 2015). Further, “[j]oint custody is not feasible where the parties have an acrimonious relationship or refuse to communicate with each other in order to effectively coparent their child [internal citations omitted].” Van Zandt v. Sauers, 12 AD3d 821, 822 (3rd Dept. 2004).
The mother's pattern of making false allegation against the father clearly presents a change of circumstances which requires a new best interests analysis. The mother's pattern of making false allegations against the father and subjecting the child (as well as the father and other family members) to traumatic CPS investigations is clearly contrary to the best interests of Connor. Beyer v. Tranelli-Ashe, 195 AD2d 972 (4th Dept.1993) (best interests of child required change of custody from mother to father based on mother's repeated filing of false allegations against father of physically and sexually abusing child and her interference with father's visitation rights).
It is in the best interests of Connor that physical and legal custody of Connor be changed to the father based upon the mother's repeated pattern of making false allegations against the father, causing false allegations to be hotlined, and encouraging the child to make up stories against the father. Beyer v. Tranelli-Ashe, supra. See also, David K. v. Iris K., 276 AD2d 421 (1st Dept. 2000). Obviously, here, a “joint custody arrangement is inappropriate as the mother and the father are unable to communicate in an effective and meaningful manner.” Matter of Mary AA v. Lonnie BB., 204 AD3d 1355,1357 (3rd Dept. 2022).
Caleb is a fit, loving, caring father. He also was changed by fatherhood. The birth of Connor probably is the main reason why the father was able to leave his criminal convictions behind him and begin to pursue a path of law-abiding responsibility. Mr. Aquitani has taken his role as father and role model to his son Connor seriously. The father is the parent who has demonstrated and continues to be able to provide stability, consistency, and appropriate care and guidance for Connor. The father is consistent and active in Connor's academic and home life. He provides appropriate love, affection, and discipline. The father is also the only parent who is able and willing to foster a relationship between the child and the other parent. Even further to the father's credit, the father is willing to continue to foster a relationship between Connor and his two half-siblings through the mother, Keith and Gina.
The father's attorney in final written submission requests that the mother's parenting time be limited to supervised visitation. The mother obviously is opposed, and the Attorney for the Child likewise opposes supervised visitation in her final submission, notwithstanding the AFC's agreement with the father that he should be awarded sole legal custody because the mother has engaged in a pattern of making false allegations of child abuse against the father. See AFC Closing Statement at p. 9.
Although the father's counsel argues for supervised visitation, this request is inconsistent with the father's trial testimony where the father stated,
“I want him home Monday through Friday. No overnights [with the mother] on weekdays. Consistent routine with me Monday through Friday. She could see him after school. I'm not looking to limit her time to nothing. I want him to love his mom and to see his mom. I think Connor needs to see us interact. We should have a good relationship.”
The Third Department has supported limiting visitation of a parent to “supervised visitation” as being in a child's best interests where there was “enormous history of [the mother] in constantly accusing [the father] of wrongdoing,” and there was “evidence that mother had a history of attempting to influence child to make false allegations of abuse against father.” Peet v. Parker, 23 AD3d 940, 941, 805 N.Y.S.2d 149, 151 (3rd Dept. 2005).
While the mother's false allegations of being assaulted by the father [Exhibit CC], her woefully insufficient family offense, her false allegations against the father of physical and sexual abuse of Connor, and her implicit encouragement of two male friends to threaten the father certainly provide this Family Court with sufficient basis to exercise its discretion to order that the mother's time with Connor be supervised, this Court believes we are not at that drastic point, yet, and hopes that such a curtailment of contact can be avoided.
Based upon all of the evidence, which includes a thorough Lincoln hearing, the Court determines that is in the best interests of Connor that the prior custody order be modified in that the father is awarded sole legal custody and primary placement and the mother shall have regular visitation, unsupervised, as more fully set forth below in the Court's Order below.
Connor genuinely loves both parents and mercifully has been shielded from most of these unpleasantries. The mother genuinely and deeply loves her son. However, while the father has been able to move on from his relationship with the mother and focus on the best interests of Connor, the mother has been unable to do so. Consequently, the mother's animosity towards the father taints all of her perceptions. This must cease. The mother must recognize that the father truly loves their son, has never harmed him, and is an excellent father to him. If there is a scratch or a bruise, rather than assume it is the father abusing the child, she should take a novel approach--- and communicate with the father before engaging in wild flights of fancy.
If the mother continues to engage in a pattern of making false allegations against the father and if she continues to directly or indirectly enlist her associates to make unprovoked threats against the father, this Court may then have to consider supervised visitation in the best interests of Connor. But again, while we may be close to supervised visitation, we are not there yet, and this decision should provide the mother with guidance on how to avoid it coming to that. As such it is hereby
ORDERED, that the father shall have sole legal custody and primary placement of the subject child; and it is further
ORDERED, that the mother shall have parenting time as follows:
1. Every other weekend from the end of school on Friday until Sunday at 5:00 p.m. (or Monday at 5:00 p.m. if that day is a school holiday);
2. Either Tuesday, Wednesday, or Thursday of each week from the end of school until 7:00 p.m.;
3. Such other or further visitation as the parties agree in writing, taking into consideration the wishes of the child; and it is further
ORDERED, that the parents shall share time with the child during the summers (alternating week on/week off schedule), holidays, and school breaks. The parties shall each submit a proposed Supplemental Custody Order setting forth a proposed schedule for the same via email in editable format no later than June 28, 2022; and it is further
ORDERED, that the father shall set the summer camp schedule, and the child shall attend all scheduled summer camps, even during the mother's weeks; and it is further
ORDERED, that the mother shall have full, complete, and independent access to the medical and educational records and providers of the subject child, to include the right to schedule separate parent/teacher conferences, to attend the child's medical appointments, and to attend any school and/or extracurricular activities of the child to which the parents are invited; and it is further
ORDERED, the mother has an affirmative duty not to permit Timothy Buck or Matthew Caswell to have any contact with the child; and it is further
ORDERED, that the father shall continue to encourage and foster regular contact between Connor and his half-siblings, Keith and Gina; and it is further
ORDERED, that the mother shall continue to engage in her current mental health treatment until successfully discharged; and it is further
ORDERED, that the child is no longer required to engage in therapy; and it is further
ORDERED, that all written communication between the parents shall take place through the Our Family Wizard, AppClose, or TalkingParents application (parties are still permitted to communicate orally in person); 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.
1. The names of the parties, subject child, and certain third parties have been fictionalized to preserve anonymity.
2. The prior Custody Stipulation and Order entered July 25, 2019, granted the parties joint legal custody with primary placement to the mother; the father was to have parenting time in alternating weeks from Thursday to Monday (Week 1) and from Wednesday to Friday (Week 2). However, at some point after entry of the 2019 Order and prior to the commencement of this action, the parties by mutual agreement began sharing equal placement of Connor in a week on/week off schedule.
3. Although the parenting schedule has changed over the two-and-a-half years that this case has been pending, the father has maintained sole legal custody and primary placement of Connor from February 14, 2020 onward.
4. Tompkins County Department of Social Services Senior Case Worker Rebecca Acosta, Katherine Mathers, and the parties testified.
Scott A. Miller, J.
Response sent, thank you
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Docket No: Docket No. XXXX
Decided: June 14, 2022
Court: Family Court, New York,
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