IN RE: a Proceeding Under Article 6 of the Family Court Act Jeanna CHEBAT (2016)

PROCEDURAL BACKGROUND

Before the Court are two (2) competing petitions seeking to establish custody of the parties' child, Noble (4) (hereinafter referred to as “Noble”). Jeanna Chebat (hereinafter referred to as “Mother”) filed a petition in or around September, 2015, requesting an order of custody for the following reasons: “We live in the same city, state. I provide a safe, loving, fun atmosphere/environment. I do not do drugs or drink.”

In or around October, 2015, Father filed his own petition seeking sole custody. Among several other allegations, Father's petition asserts that, “[Mother] has a very unstable work history [ ] she is practicing massage therapy without a license in New York state.” [ ] “I have concerns over [Mother's] irrational behavior and mental stability and how that affects our son. She becomes overly emotional and makes rash decisions that are not in the best interests of our son.”

Testimony was heard on May 10, 2016, May 11, 2016 and May 12, 2016. Counsel submitted written summations on July 1, 2016. There were three witnesses heard from at trial, to wit: Mother, Father and Dr. Kathleen Lillis, who offered expert testimony concerning immunization standards and risks. This Court has had the unique opportunity to evaluate and observe the demeanor, temperament and sincerity of the witnesses and weigh their respective credibility. This Court has further considered the petitions filed by both parties, the exhibits in evidence together with the applicable statutory and case law and now makes the following material findings of fact and conclusions of law.

FINDINGS OF FACT

History/Shared Background

In or around the spring of 2009, the parties met at a yoga class and began dating. They were both residing in the state of Arizona at the time. Noble was conceived in late 2010; thereafter Mother moved into Father's apartment, and they resided together for a few months. Father described Mother's behavior as violent and destructive, alleging that she scratched him and “trashed his condo”. Father testified that Mother was removed from his home by the police more than once and eventually he kicked her out in or around March 2011.

On one occasion, Father alleged Mother slapped him while Noble was in his arms. Mother admitted that she injured Father, but denied that it occurred after Noble's birth. In a Parenting Assessment received in evidence as Respondent's Exhibit A, Mother admitted she “has a temper” but did not appear to be remorseful concerning her aggression towards Father.

Though Mother testified that she had resided in Arizona for approximately ten (10) years, she returned to Buffalo, New York in or around April 2011 prior to Noble's birth. Father did not want Mother to move to Buffalo and encouraged her to stay in Arizona, but she left anyway to be closer to her family. Father testified that left his job and his life in Arizona in or around July 2011 to follow Mother, “live up to his obligations” and “be a father” to Noble.

The parties resumed their relationship and resided together in Western New York from approximately July 2011 (when Noble was born) to around October 2012. At that point the parties separated, but maintained apartments in close proximity to one another. The parties agree that during this period they were able to share time with Noble nearly equally without a court order.

Father testified that he had two (2) jobs while residing in Buffalo in order to support Noble and make ends meet. He worked Monday through Friday at one full time job, and then Saturday and Sunday evenings part-time at a restaurant. Mother expressed resentment regarding Father's work schedule testifying that “it just wasn't fair”; “I needed downtime”; “he took my weekends by taking a weekend job; he took a lot”. Father was dissatisfied with the situation as well indicating that he was not able to see Noble as much as he would have liked, due to work constraints.

In or around March 2015, Father was offered a salaried position back in Arizona. He discussed the opportunity several times with Mother in an effort to persuade her to return to Arizona with him. Ultimately, Father made a decision to accept the position and move to Arizona in or around May 2015. Father testified that he felt compelled to accept the opportunity to “better mine and my son's future”. He knew that he would be leaving Noble with his Mother, but he was confident that she would follow him eventually.

The parties continued to negotiate Mother's relocation to Arizona, with Father offering financial support, transitional housing and use of a car among other things (See Petitioner's Exhibit 5 ). Mother testified that she had major hesitations about relocating to Arizona. Although she described Father as “unfair” and testified that she does not “trust his word”, she accepted his offer of assistance and moved herself, Noble and all their belongings to Arizona on July 8, 2015.

In early July 2015 the parties and Noble began residing together again in Arizona. The family resided in a four (4) bedroom home with Father's friend and employer, Jeremy Pitts. Noble was slated to start a Pre–K program on August 3 2015. Plans were made to assist Mother into transitioning into her own housing in early August 2015.

On her direct testimony, Mother described Father as making sexual advances towards her when she moved to Arizona in July 2015, which made her uncomfortable. This assertion was inconsistent with her testimony on cross examination when she testified that she felt comfortable enough to walk around naked in Father's presence, massage him and ask him for massages in return.

Mother also testified that she had concerns about “Father's drinking” generally. Her testimony was exaggerated and tearful as she described a particular incident where Father was animated and according to her, “acting like a child” while intoxicated. In Mother's description, Father “spat in Noble's face” and she became “enraged”, but “stayed composed” and went for a walk, leaving Noble with Father. Mother returned to join them in the pool and tearfully testified that although she felt “unsafe” and that she felt “her son was unsafe” she nevertheless stayed in the pool with Father, who according to Mother “calmed down and sobered up pretty fast.”

Father testified to the same incident and openly acknowledged that he had a “buzz on and was drunk” during the incident. He was in the pool with Noble and they were frolicking—Noble playfully spitting water in his Father's face and Father returning play. Father testified that at no time was Noble in danger. Mother's testimony regarding this incident was less credible than Father's.

Both parties described another incident in which Father came home intoxicated around the end of July, 2015. Father openly admitted that he was out with friends when he began receiving repeated calls from Mother at about 1:30 a.m. on July 31, 2015. He immediately “Ubered” a ride home perceiving she was “mad”.

Once home, he testified that Mother “flipped out” on him, pushed him and yelled loudly enough to awaken Noble and Mr. Pitts. Once the confrontation ended and Noble was calmed down, Father went to sleep. Father woke the next morning to an empty house and a text message depicting only a picture of his car at the airport, presumptively intended to be Mother's explanation of her departure back to Buffalo.

Though Noble and Mother were gone from Father's residence, most of their belongings remained for several months. Father testified that Mother threatened she would leave in an argument, but it was undisputed that her relocation was never actually discussed, rationalized or planned. Mother simply left with Noble abruptly, without consent or consultation. Mother was unable to offer a reasonable explanation for her (and Noble's) sudden retreat back to Buffalo.

Witness: Father

Father is 48 years old and employed full time as a branch manager of “On the Level Installations”, an office furniture installment company. He earns a base salary of approximately $34,000.00 annually with potential for bonuses. Father has health insurance for himself and Noble through his employer. He testified he has a lot of flexibility with his career path and has the ability to work from home much of the time. Father presents as calm, articulate and patient. The court found Father to be a reliable and credible witness.

Father resides in Tempe, Arizona in a single-family home rented by his friend (and employer) Jeremy Pitts. Noble refers to Mr. Pitts as “Uncle Jammers”. The home has four (4) bedrooms, a fenced in yard and a swimming pool. Father has a cousin who resides near him in Arizona, but most of his family resides further away.

Father was able to articulate a strong knowledge of Noble's educational and medical needs, including what he would anticipate providing him should he be awarded primary custody. Father further testified that he and Mother strongly disagree about a number of issues concerning Noble's health, education and welfare.

It was undisputed that Mother is resolutely opposed to Noble's immunization, due to her spiritual and moral beliefs. She also prefers to treat illnesses and injuries homeopathically rather than seek traditional medical attention. She indicated that she was “following her heart” as a professional “in the health and wellness field” and therefore, rejects using any product that is not natural. On cross examination she explained that this is her strict religious belief to refrain from putting “anything foreign in a temple”. She admitted rubbing cocaine on her gums “in August at a wedding” but added, “it was pure”.

Father testified that he respects Mother's point of view, and for the most part acquiesced to it to avoid conflict. Nonetheless, he is in favor of immunization and allowing Noble to have access to antibiotics or over-the-counter medication if needed. Father expressed a strong desire to have Noble placed on a “catch up schedule” of immunization to “protect his health and well-being”.

Father testified that if he were to be awarded primary custody, he would provide Mother as much parenting time as possible and would promote the relationship between Noble and Mother. He would facilitate telephone and Skype access and would agree to alternate and share holidays, long school recesses, including significant summer access. Father further indicated that should Mother make a parallel move back to Arizona that he would welcome a joint shared parenting time arrangement.

Witness: Mother

Mother is 36 years old and testified that she works as a licensed massage therapist. Of note, Mother testified that she is only licensed to practice massage in the state of Arizona, not New York; nevertheless, she boldly admitted that she engages in that practice anyway out of her New York home.

Mother did not divulge her income level; only that her income, coupled with the child support received from Father, allows her to pay rent and purchase food. Her testimony established that she relies on family to help support her and Noble. She further testified that she and Noble are on public assistance in the form of Medicaid.

Mother describes her residence as a two (2) bedroom apartment in a four (4) unit building. Though she testified she and Noble each have their own bedroom, she also testified that she performs massage therapy in an “extra bedroom” which made the layout of her apartment unclear to the court. She further indicated that Noble is generally not present at the residence when her clients come to call, but he knows some of them and “they love him”.

Mother presents as expressive, emotional and at times, defensive. As a witness, the court found Mother to be less reliable and credible than Father. Inconsistencies in her testimony as well as her demeanor compromised her credibility.

Despite all of her concerns regarding Father, on her direct testimony Mother stated that it was her intention to foster a healthy relationship between Father and Noble. On her direct testimony, she offered visits could be unsupervised “whenever” and indicated she would be comfortable with Noble going to Arizona to spend time with Father unsupervised. This generous offer did not endure when Mother was cross examined on the same subject.

Upon cross examination, Mother offered far less time than “whenever” and tearfully testified that “it breaks her heart” to discuss alternating holidays and access for Father. She testified that Father would be “welcome to come here whenever he wants”. When questioned about more access for Father in the summer under her proposal she testified—“I'm thinking three (3) weeks, I don't know why I should have the school year and he enjoy summer?” When pressed if she thought this was fair she replied, “Well, it's hard for me to send my baby away.”

Witness: Dr. Kathleen Lillis

Dr. Lillis provided expert testimony that vaccination of children is recommended by the American Academy of Pediatrics and is very effective in preventing diseases in children. The court found Dr. Lillis to be a credible witness. In rendering this decision, the court relied more heavily on the testimony of Noble's parents than Dr. Lillis' testimony.

These parents have a difference of opinion concerning vaccination of Noble. Mother takes the position that she does not want Noble vaccinated, and although Father has acquiesced to her demands thus far, he made it clear that this is not his preference at all. By all accounts Noble is healthy boy at the present time.

CONCLUSIONS OF LAW

In making an initial custody determination, the overriding priority is the best interests of the child. Lynch v. Gillogly, 82 AD3d 1529 (3d Dept. 2011). In cases involving the geographic relocation of a parent, as in all other custody proceedings, the primary focus of the court is the best interests of the child, not the mere fact of relocation. No single factor is determinative in such cases, which must necessarily be resolved on their own particular facts Donald C.O. v. Carolyn D.V.B. 224 AD2d at 930, (4th Dept. 1996) citing Matter of Ferguson v. Ressico, 125 AD2d 915 (3d Dept. 1986).

Here, the court is faced with the primary responsibility of making an initial custody determination and secondarily with the issue of relocation. Although a court may consider the effect of a parent's relocation as part of a best interests' analysis, relocation is but one factor among many in its custody determination. Saperston v. Holdaway, 93 AD3d 1271 (4th Dept. 2012) appeal dismissed, 20 NY3d 1052 (2013); see also Quistorf v. Levesque, 117 AD3d 1456, (4th Dept. 2014)

As an initial custody determination, the instant case cannot properly be characterized as a relocation case requiring strict application of the factors set forth in Tropea v Tropea, 87 NY2d 727 (1996), although it is a factor that the court certainly considers. Relocation is not a proper basis upon which to award primary physical custody since the child will need to travel between the parties' two residences regardless of which parent is awarded primary physical residency. Quistorf v. Levesque, supra.

In determining the child's best interest, the factors to be considered include: (1) quality of the home environment and parental guidance each parent provides the child; (2) financial status and ability of each parent to provide for the child; (3) ability of each parent to provide for the child's emotional and intellectual development; (4) demonstrated parenting ability and demonstrated fitness of the parties; (5) the love, affection, and nurturing given by each party to the child, the emotional bond between the child and each party, and the willingness and ability of each party to put the child's needs ahead of his/her own; (6) willingness and ability of each party to facilitate and encourage a close and optimum relationship between the child and the other party; (7) the individual needs of the child or the desires and preferences of a child; (8) any other factors deemed relevant to a particular custody dispute; e.g., domestic violence and its impact on the child. Eschbach v. Eschbach, 56 NY2d 167 (1982).

There was no evidence presented to show that either parent was superior to the other in terms of the love, affection, and nurturing given by each party to Noble; nor was there any testimony demonstrating a stronger bond between Noble and either parent. Both parties provided care for Noble as an infant in terms of his physical needs. Both were able to demonstrate that they have a solid knowledge of Noble's developmental, emotional and educational needs. These factors did not weigh heavily in either parent's favor.

Each parent brought up valid concerns regarding the other's fitness. Mother's testimony regarding her concerns about Father's fitness was exaggerated and tended to undermine her credibility rather than support her position. Though each parent openly admitted using narcotics and Father admitted to alcohol use in Noble's presence, the court was not persuaded that either party has any significant issues concerning substance abuse. Each parent successfully completed mental health and substance abuse evaluations in evidence as Court's Exhibits 1, 2, 3 and 4 which demonstrate their respective well-being.

With respect to quality of the home environment and the parental guidance each parent provides Noble, these factors weighed more heavily in favor of Father. Father's home was described as a single-family structure with a fenced-in yard and pool in a gated community. Mother resides in a two (2) bedroom apartment, out of which she runs an unlicensed massage practice. Further, Mother's testimony demonstrated a lack of insight concerning how her actions effect Noble. For example, Mother admitted that she walks around naked in Noble's presence and still bathes with him, though she acknowledged “he is getting to an age where I need to stop.” She was reluctant to enroll him in an afterschool program as she testified “I would love to keep him home with me, but most likely, I'm probably going to enroll him more”.

Testimony clearly demonstrated that Father has a superior financial status and more of an ability to provide for Noble than Mother. This factor weighs more heavily in Father's favor. Father has maintained more stable employment and housing for a longer periods of time than Mother exhibited a tendency to relocate more frequently and without warning or reason.

Mother moved Noble to Arizona at the beginning of July 2015 and then quickly back to Buffalo by the end of July 2015 in response to what she deemed Father's “unfairness”. Despite her attempts to blame her decision on Father, her retreat to Western New York can only be described as reactive, impulsive and retaliatory to what she perceived as Father's “unfair” treatment of her.

Because she had no plan in advance of her relocation, she admitted to changing residences frequently upon her return to Buffalo until she stabilized. She left all of Noble's material things in Arizona for months on end. Mother left Arizona without making any proposal to continue Noble's contact with Father. Though she acknowledged that Noble was to start school in Arizona, she admitted that she failed to enroll him in school upon her return to Western New York for a period of at least six (6) months. All of this seriously calls into question Mother's willingness and ability to put the child's needs ahead of her own. This factor clearly weighs more heavily in Father's favor.

Further, Mother's stated employment is providing massage out of her home without a license. This is concerning to the court in that it demonstrates a real disregard for the law on Mother's part. Only persons licensed or authorized pursuant to the Education Law are permitted to practice the profession of massage therapy; doing so without a license is a class E felony. (see Education Law § 7802; and § 6512[1] ).

Additionally, Mother also admitted to “losing her temper” and hitting Father in response to her anger. Mother's tendency to exaggerate Father's bad behavior and paint herself as a victim, calls into question her willingness and ability to facilitate and encourage a close and optimum relationship between Noble and Father.This factor weighs more heavily in Father's favor.

Mother tearfully described one of her Facebook postings, received in evidence as Respondent's Exhibit I, wherein she describes Father as a “parasite” and she his “host”. Referencing that same exhibit, Mother admitted that she referred to Father a “bad person” when she stated, “bad people never win”. On a separate occasion during her testimony Mother tearfully acknowledged “I get angry. I think, how can I give my son to such a horrible person?”

Despite all of this, Father appears willing and able to foster a positive and cooperative parenting relationship with Mother. Further, he seems willing and able to facilitate Noble's relationship with Mother. While he maintains different beliefs concerning Nobles health and medical treatment, he remained respectful of Mother's holistic beliefs and practices.

In the totality of the circumstances, Mother was found to be less fit than Father to act as Noble's primary residential parent. The preponderance of the evidence supports designating Father Noble's primary parent. Clearly, Mother has an ability to make a parallel move to Arizona, as demonstrated by her past behavior. She resided there for ten (10) years prior to Noble's birth and is licensed to practice massage in Arizona. Should she again relocate to Arizona, Father indicated a willingness to resume a shared regular parenting time arrangement.

DECISION

After a review of all the evidence and being in a position to observe the demeanor and credibility of the parents, the court finds that in the totality of the circumstances, the best interests of Noble are served by granting the parties joint legal custody, with Father designated Noble's primary residential parent, subject to Mother's independent rights as set forth below. It was uncontroverted that Mother is a good, caring and loving parent to Noble; however, Mother's negative and dismissive demeanor towards Father make her ill-suited to act as Noble's custodial parent.

NOW, THEREFORE, the Court having searched the statewide registry of orders of protection, the sex offender registry and the Family Court's child protective records, and having notified the parties and attorney for the child of the results of these searches; and the Court having considered and relied upon the results of these searches in making this decision it is hereby:

ORDERED that Mother's Petition for Custody (Docket No. V–13757–15) is hereby denied in its entirety with prejudice; and it is further

ORDERED that Father's Petition for Custody (Docket No. V–15303–15) is hereby granted as follows:

(1) The parties shall enjoy joint legal custody of Noble; with Father designated Noble's primary residential parent. As soon as practicable, but no later than the commencement of the 2016–2017 school year (defined by the school calendar set by Bridges Pre–School & Kindergarten, 7570 S Willow Dr, Tempe, AZ 85283), Noble shall relocate to the State of Arizona to reside primarily with Father.

(2) Father shall have primary authority to make all decisions concerning Noble's health, education and general welfare; subject to his obligation to confer and consult with Mother regarding same and shall keep Mother informed of all decisions concerning Noble's health, education and general welfare. In the event of a disagreement between the parties concerning major decisions, Father's decision shall be controlling.

(3) Mother shall have equal and independent access to all of Noble's educational and medical records and providers. Father has an affirmative obligation to inform Mother in writing (e-mail or text) within thirty (30) days of receipt of this Order of the names, addresses and phone numbers of each and every educational, medical, day care and extracurricular provider so that Mother may avail herself of his rights of independent access. Said obligation is on-going should any providers change.

(4) Both parties shall have a continuing obligation to keep the other informed of his or her current contact information at all times including physical address, telephone numbers and email addresses.

(5) The parties shall adhere to the following conditions of access at all times:

(a) There shall be no disparaging remarks or discussion of these proceedings made in the presence of the child by either party, nor shall they permit any 3rd parties to do so in their presence.

(b) If the parties choose to have Noble travel by plane to effectuate the within access, they shall ensure that he flies with a parent or person familiar to him until such time as he is able to fly unaccompanied minor status.

(c) Mother has an affirmative obligation to purchase plane tickets to effectuate the commencement of her access and provide flight information to Father via email no less than thirty (30) days in advance of the scheduled travel time.

(d) Father has an affirmative obligation to purchase plane tickets to effectuate the completion of Mother's access and provide flight information to Mother via email no less than thirty (30) days in advance of the scheduled travel time.

(e) Holiday access supersedes regular and vacation access.

(6) Telephone/FaceTime/Skype access: Each party shall be afforded reasonable Telephone/FaceTime/Skype access with Noble on days when he is not in his or her physical custody.

(a) Reasonable Telephone/FaceTime/Skype access is herein defined as no more than twice per day for a duration of fifteen (15) minutes each session.

(b) The parent who has physical custody has an affirmative obligation to answer the other parent's call and allow Noble time and space to engage in conversation.

(c) Should a phone call be missed, the parent who has physical custody has an affirmative obligation to return any missed calls as soon as is practicable.

(7) Mother shall have regular access during Noble's school year as follows:

(a) While school is in session, any time Mother is in Arizona, she shall be afforded liberal access with Noble upon 48 hours written notice (text message or e-mail) of her intent to be in Arizona, consent to not be unreasonably withheld. On these occasions, Mother shall have the opportunity to pick up Noble from school and/or deliver him to school without interference and take him to his regularly scheduled activities.

(b) If practicable, Mother shall be entitled to all “long weekend” access to coincide with Noble's Monday holidays from school (i.e. Columbus Day, Veteran's Day, Martin Luther King, Jr. Day, etc.).

(8) Mother shall have summer access, holidays, days of special meaning and all other school recesses as follows:

(a) In all summers commencing 2017 and thereafter, Mother shall be afforded summer recess access with Noble each and every year as further defined herein.

(b) Mother's access shall commence on the Saturday after Noble's last day of school and end exactly ten (10) days prior to the commencement of his next school year.

(c) Any such additional, different or further summer access as can be agreed and arranged between the parties; including any time Father is in Buffalo, he shall be afforded reasonable and liberal access with Noble upon 48 hours written notice (text message or e-mail) of his intent to be in Buffalo, consent to not be unreasonably withheld.

(d) Thanksgiving—Every year (as the school schedule may allow) Mother shall have from the Wednesday immediately before Thanksgiving at 8:00p.m. to Sunday at 8:00p.m.

(e) Christmas—The parties shall equally share the Christmas holiday/recess as follows:

(i) In 2016 and all even years, Mother shall have from 3:00p.m. the day after school ends for recess, including Christmas Eve and Christmas Day, with a return to Father on December 30th at 3:00p.m.

(ii) In 2017 and all odd years, Mother shall have from December 26th at 3:00p.m. to 3:00p.m. the day before school resumes.

(f) Spring/February Break—On each long break, Mother shall have from 3:00p.m. the day after school ends for recess to 3:00p.m. the day before school resumes.

(g) Easter Holiday—Should the Easter holiday fall within Noble's school break, Father shall have Easter weekend in odd years (2017, 2019 etc.); Mother in even years (2016, 2018 etc.). The weekend shall be from Friday at 3:00p.m. through Sunday at 3:00p.m.

(h) Mother's Day—If feasible, Mother shall always have Mother's Day weekend from Friday at 3:00p.m. to Sunday at 3:00p.m.

This constitutes the Decision and Order of the Court. Submission of an Order by the Parties is not necessary.

Mary G. Carney, J.