Rachel C.H. v Timothy S.

[*1] Rachel C.H. v Timothy S. 2005 NY Slip Op 50985(U) Decided on June 28, 2005 Supreme Court, Oneida County McCarthy, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 28, 2005
Supreme Court, Oneida County

Rachel C.H., Petitioner,

against

Timothy S., Respondent.



Timothy S.S., Petitioner, -vs-

against

Rachel C.H., Respondent.



FC 2005-42

James W. McCarthy, J.

The above-captioned matter was transferred to Supreme Court form Family Court by Fifth Judicial District Administrative order dated March 8, 2005. Trial took place on March 29, 2005, April 4, 2005, and May 13, 2005 encompassing the five petitions filed in this matter. The first petition verified by Rachel H. on October 18, 2004 alleged a violation of a previous court order issued by the Hon. James R. Griffith on May 6, 2002, which encompassed a custody/visitation agreement of the parties. The second petition filed by the father Timothy S., of the infant child, was verified on November 24, 2004, requested a modification of the prior court order hereinbefore referred to by changing of custody of the infant child to petitioner father. The third petition verified by Rachel H. on December 9, 2004, under an "O" docket, alleged a family offense by Timothy S.. The fourth petition verified by Rachel H. December 9, 2004, was filed by Rachel H. against Timothy S. requesting a modification of the prior court order of May 6, 2002, wherein she sought to change her residence and the residence of infant child. The fifth petition verified February 8, 2005 was filed by Timothy S. S. against Rachel H.,, which effectively amended the petition of Timothy S., filed and verified on November 24, 2004, seeking a modification of custody of the infant Megan S.. The infant child in issue was Megan S., born March 14, 1998.

The court scheduled an in-camera interview prior to commencement of the trial on March 29, 2005 [*2]allowing counsel for the petitioner and respondent to send questions to the court which the court would ask the infant child, those it deemed appropriate. The court received petitioner's exhibit 1 on March 29, 2005, for in-camera interview, consisting of two pages of questions and three drawings, the petitioner being Rachel H.; and respondent's exhibit "A" on March 29, 2005 for in-camera interview consisted of one page of questions from Mr. S.. On that date, the court, in the presence of the law guardian conducted an in-camera interview, asked those questions of the infant child it deemed appropriate. The court further directed, after the second trial date of April 4, 2005, that Megan S. be brought on May 13, 2005 for another in-camera interview with the law guardian and the court. This second in-camera interview took place on May 13, 2005.

At the end of the trial on May 13, 2005, the court directed the law guardian to provide his recommendations to the court in written form, with copies to both attorneys. The court received an eight page law guardian closing arguments by Mr. Nasci faxed to its chambers on May 25, 2005, wherein he recommended that no change in physical custody be granted to Mr. S. and that Ms. H. not be allowed to move from Oneida County with the child and that if she did, that custody be changed to Mr. S. "in his Oneida County residence".

On the three trial dates, various witnesses testified and exhibits were admitted into evidence. The court reserved decision on the last trial date of May 3, 2005 and ordered the transcripts of the appearances. Having read and reviewed the complete testimony of the transcripts of the trials and the court's determinations of credibility and the demeanor of the witnesses and the pleadings and other evidentiary materials received, the credible evidence supports the following Findings of Fact and Conclusions of Law.

Findings of Fact:



The parties in this matter, were never married. However, they had the infant issue, Megan S., d/o/b March 14, 1998, from their relationship. As a result of difficulties between them, they entered into mediation with the Peace Maker Program, Inc., in Utica, New York, resulting in a custody/visitation mediation agreement signed on March 26, 2002 by Timothy S. and April 18, 2002 by Rachel H.. This custody/mediation agreement was approved by the Hon. James R. Griffith, by order signed May 6, 2002. The custody/visitation mediation agreement, by its term, consisted of four pages. Both parties were represented by counsel. More particularly, Timothy S. had been represented by current counsel, Mr. William M. Borrill, and the law guardian approving the agreement was John Nasci, Esq., law guardian herein.

The order approving the agreement and the custody mediation agreement (hereinafter all referred to as agreement) granted joint legal custody of Megan to both parties with primary physical custody to Rachel H.. At the time the agreement was entered, Ms. H.'s address was listed at 409 North George Street, Apt. 4, Rome, New York. Mr. S.'s address was listed as 2520 Sunset Avenue, Utica, New York. The agreement provided various visitational rights to Mr. S. and included paragraphs by which both parties would conduct themselves. More particularly, the agreement provided for

...Both parties agree that neither parent will do or say anything that will hamper a peaceful exchange [*3]during any visitation drop off or pick up of their daughter; nor permit any third party to do the same...Both parties agree that each will abstain from the use of vial, obscene, or threatening language toward the other and will not contact each other except by telephone and will telephone only to discuss visitation and health and well being of their child...Both parties agree that neither parent will argue or fight or speak ill of each other, toward each other or to any third party while in the presence of the child. Both parties further agree that neither party will permit any third party to speak ill of either party nor fight and/or argue while in the presence of their child...Both parties agree that they will collaboratively secure any necessary professional counseling and/or speech pathologist for their daughter. Both the parties further agree that whichever parent makes an appointment with such counselor or pathologist, he/she will schedule the initial appointment at a time when both parents may attend...Both parties agree that in July of 2003, because of their daughter entering public school, they will review and make necessary revisions of visitation scheduling through Family Court Medication Services...

(Agreement, pages 2 and 3).[FN1]

The first petition verified on October 18, 2004 filed by Rachel H., alleged a violation of the order of Judge Griffith dated May 6, 2002, incorporating the agreement. The petitioner, Rachel H., filed a second petition, verified December 9, 2004, under an "O" docket, in which she alleged a family offense for effectively the same allegations contained in the earlier filed petition. While each petition sought different relief, the allegations contained therein were similar in every respect. The court will therefore consider the evidence in regard to those petitions jointly.

Following the filing of the initial petition, Mr. S., filed a petition to change custody of Megan S., verified on November 24, 2004. Subsequently, apparently after engagement of counsel, Mr. S. filed a petition for modification of the order of Family Court, that was verified February 7, 2005, which effectively amended his previously filed petition. Rachel H. verified and filed a petition on December 9, 2004, wherein she sought modification of the order of Judge Griffith incorporating the agreement as hereinbefore described. In that petition, Ms. H. sought to be allowed to move from her residence in Rome, New York, to Camillus, New York. She, concomitantly sought to modify the visitation to every other weekend that was previously granted by the agreement to Mr. S.. However, upon the trial of this matter, should the move be allowed, she testified that she consented to Mr. S. having open and liberal visitation and that she would make efforts to transport Megan so that Mr. S. could have substantial visitation.

On March 29, 2005, the witnesses that testified were Rachel H., petitioner; Timothy S., respondent; Michael H.; ex-husband of petitioner; and Tara H., daughter of Michael H. and Rachel H.. On April 4, 2005, the witnesses that testified were Kirsten Birney, paramour and fiancé of Timothy S.; Yvone Obranovich, mother of Rachel H.; Tracy Cote, friend of Rachel H. and previous co-worker of Timothy S.; and Eddy A., paramour of Rachel H. who purchased a house in Camillus to which Ms. H. petitioned to move to live with the infant Megan. On that date, Timothy S. continued his [*4]testimony as well.

On the last day of testimony of May 13, 2005, the witnesses were Michelle R., first grade teacher of Megan S. for the year 2004-2005 at Denti Elementary School in Rome, New York; Joanne P., daycare provider currently and for approximately one and one half years of Megan S.; Marge A., mother of Eddy A. who lives in Camillus; and petitioner, Rachel H.. Another witness on that day consisted of Marsha Cain, school counselor at Denti Elementary School in Rome, New York, who had counseled Megan S..

Rachel H. is presently thirty-two years old. She lives in Rome, New York and at 901 DeWitt Lane. She bought the home in Rome in approximately August 2002. She has two daughters, Tara H., age 15, who currently resides with the biological father, Michael H., who has had custody since November 2004 (infra). She also has physical custody of Megan, the subject of the within proceedings. Originally, Tara H. resided with Rachel H.. However, Ms. H. testified that she and Michael H. had a verbal agreement and never went to court in regard to the transfer of custody of Tara H.. Michael H., however, testified that there was never any verbal agreement regarding custody of Tara. There was a date set for a trial in Family Court, Oneida County in 2004, for the custody of Tara and Rachel H. did not show up. Therefore, the court awarded custody of Tara H. to Michael H. based upon the default of Rachel H.. The court finds Michael H.'s version of the circumstances of the transfer of custody of Tara more credible than Rachel H.'s.

Rachel testified that she has a bachelors degree in psychology form SUNY Utica, which she received in May 2002. She commenced work at the Oneida County Department of Social Services on April 5, 2004, with a salary of approximately $29,000.00 a year. She transferred her employment to Onondaga County Department of Social Services and March 21, 2005 was her first day of work there. Her salary in Onondaga County is $35,760.00, some $6,760.00 more than she was earning in Oneida County. Rachel H. testified that her mother, Yvonne Obranovich, moved from Kentucky to reside with her in Rome, New York, with Rachel's sister on March 29, 2005. On May 13, 2005, Rachel testified that her mother and sister had recently moved out of the premises and intended to move to Syracuse.

Rachel met Eddy A., her paramour, approximately July 2004. She commenced dating him and in December 2004. Eddy A. put a purchase offer on a home at 111 East Arbordale Road, Camillus, New York and subsequently closed in January 2005. The relationship between Mr. A. and Ms. H. grew after the initial meeting July 2004, and they started looking for a home in Camillus in approximately October 2004 (infra).

In regard to Megan, Rachel testified she was doing well in school. This was buttressed by the testimony of Michelle R., who was the first grade teacher of Megan. Rachel testified that Megan goes to school groomed, well dressed, and appears to be a happy child. Michelle R., furthermore, testified that Megan appeared fine in regard to her hair, clothes and demeanor and that she is a great student and she is also good about her homework.

[*5]PETITION VIOLATION OF COURT ORDER

PETITION FAMILY OFFENSE

PETITIONER RACHEL H.

In regard to the petition by Rachel H. alleging a violation of a court order against Timothy S. and the petition alleging a family offense under the "O" docket, Ms. H. testified to incidents relative to those specific petitions. More particularly, she testified that Mr. S. violated the court order of May 6, 2002, in that Mr. S., on November 24, 2003 used threatening language towards her and called her obscene names and that Mr. S. called her on the phone often and called her obscene names while Megan was present at home and in the background, which if proven would be a violation of the May 6th order relative to not using vile or obscene or threatening language towards each other and having no contact except by telephone to discuss visitation and the health and well-being of the child. She further testified that her older daughter Tara experienced stress because Mr. S. called her repeatedly after Rachel H. hangs up on him. She testified that on November 24, 2003, Mr. S. called her cell phone ten times in a row.

She further testified that Mr. S. interrogates Megan when Megan is visiting him and to an incident in July 2004 at Marcy where Mr. S. stated in sum and substance "keep your boyfriends away from my daughter scumbag" and testified Megan was present when this occurred. A specific incident she testified to was October 4, 2004, when she had a tape recorder during an exchange for Megan. Mr. S. grabbed the tape recorder out of her hand and threw it on the ground causing it to break and Megan was present. This court stated the "O" docket petition is effectively the same allegations as in the violation of the court order petition.

In regard to the incident on October 4, 2004, alleged by Ms. H., wherein the transfer of Megan took place and Mr. S. took a tape recorder from Rachel and smashed it on the ground, Mr. S. admitted this took place and that it was inappropriate. He further admitted that he didn't recall at a transfer of Megan that he called Ms. H. a "scumbag". He did remember during a particular transfer when Eddy A. was present, that he said words to the affect "everyone in town's had her. Maybe it's your turn or something to that affect". He admitted that was inappropriate. At this incident, Megan was present but Mr. S. maintained that Megan was in the car and the door was closed and the window was up.

In regard to the petition alleging a violation of the court order by Rachel H. verified October 18, 2004, the court finds through the admissions of Mr. S., a violation of the May 6, 2002 order having occurred. The taking of the tape recorder from Ms. H. and smashing it on the ground while Megan was present was a violation of that order as well as the statement made to Mr. A. in the presence of Megan, albeit allegedly Megan was in the car and did not hear it. The fact that Megan was there is a violation of the order.

Furthermore, the court finds those same violations sufficient by a fair preponderance of the evidence to sustain the petition alleging a family offense having occurred. The specific allegations in Ms. H.'s "O" Docket family Offense petition alleged Mr. S. committed acts amounting to "harassment in the [*6]second degree". Harassment in the second degree is defined, as the court deems applicable herein, as:

A person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person:

3.He or she engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose...

N.Y.Pen. Law § 240.26(3) (McKinney 1999)

The court finds the admitted acts of Mr. S. of making the comment to Mr. A. with Megan present and Mr. S. smashing the tape recorder while Megan was present, and Mr. S. calling Ms. H. a "scumbag" such a course of conduct designed to annoy Ms. H. which served no legitimate purpose. The court will consider these violations, infra, relative to the mandate of Domestic Relations Law §240-1a (likewise, FCA § 651(b)). Pursuant to § 841(b) of the Family Court Act, the court as its disposition hereby suspends judgment for a period of six (6) months in regard to its finding that respondent Timothy S., committed the Family Offense under the "O" docket petition. In the event the respondent contests the disposition of the court under the "O" docket petition, he must file a notice thereof with the court within thirty (30) days of the service of the order embodying this written decision upon him.

PETITION MODIFICATION ORDER MADE BY FAMILY COURT

PETITIONER TIMOTHY S.

Mr. S. in his petition, which was verified and filed November 24, 2004, requested a change of custody of Megan to him. The basis of the change in custody, allegedly, was that Ms. H.'s boyfriend, Eddy, hugs and kisses Megan and she doesn't like it and that Rachel H. and Eddy slept in the same bed and Megan would be uncomfortable and has told him this. Allegedly on Friday, October 29, 2004, further allegations were that Ms. H. dropped Megan off at school twenty minutes early and that made Megan wait outside the school without any adult supervision. Mr. S. furthermore maintained that he could provide a more stable home environment, financially and loving.

Timothy S.'s testimony indicated that he resides currently at 105 Colonel Drive, Rome, New York and he has lived there since approximately January 20, 2005. Prior thereto, he lived at Sunset Avenue, Utica, New York, which was approximately 18 miles from Rome, New York. The premises where he currently lives is with his fiancé, Kirsten B., who owns the house at Sunset Avenue with her mother, Amalie Castro. Mr. S. has been going out with Kirsten for approximately 5 years. However, they had a brief split from April 2004 until June 7, 2004. They plan on getting married. Ms. B. works at the Turning Stone Casino as a waitress in a restaurant.

The testimony of Mr. S. indicates that he currently has an apartment which he shares with a co-employee in Tonowanda, New York, as he works in Niagara Falls, at the Casino as a senior investigator for New York State. His work schedule is Tuesday thru Saturday from 11:00 am until 7:00 pm. Mr. S. indicates that he is home every Saturday, Sunday and Monday and he visits Megan each weekend. Ms. B.'s daughter Mercedes lives with Kirsten at the home in Rome. Mr. S. testified [*7]that Rachel has never given him a hard time about visiting Megan except when he wished to take Megan to Florida in April of 2005. He was going there with Kirsten, Mercedes, and Megan. Although he has an apartment in Tonowanda and works at the Casino in Niagara Falls, he testified he can basically work whatever hours he wants as long as he puts in the required amount of weekly hours. Mr. S. further testified that he could change his hours to have more visitation with Megan as long as he completes the number of hours he was required to work per week and that his employer supervisor is open to this. He testified however, that Rachel does take care of Megan properly but when she has a boyfriend, Megan takes a back seat.

The current visitation with Megan is approximately 5:00 pm Saturday until 5:00 pm on Monday. Mr. S. testified that he believes he will be transferred to the Turning Stone Casino in Rome, New York, as there is a person there who will be leaving and he has requested same. However, currently, he does work at the casino in Niagara Falls and maintains his apartment in Tonowanda.

Rachel H. had testified that Mr. S. had asked her, during the period of the breakup from April to June 2004 of Mr. S. and Ms. B., to move to Tonowanda and live with him. In regard to this testimony, Mr. S. testified that he did say something to Rachel about moving to Tonowanda area to be closer to him, but that was for the purposes, effectively, for visitation with Megan. He maintained this was Rachel's request and that she was looking for a job with the State somewhere and she effectively asked him for information regarding the move to Tonowanda and potentially finding a job. This indicates to the court, an inference that Mr. S.'s residence was going to continue in the Tonowanda area.

In regard to the breakup with Kirsten during April - June 2004, he maintained it was because of a disagreement between Megan and Mercedes, Kirsten's daughter in that they didn't get along. However, Mr. S. testified that they now have a good relationship and there would be no problems should he obtain custody of Megan.

In the event that Mr. S. does not get the transfer to Turning Stone Casino, he testified that he would obtain another job or quit his current job if necessary. He further testified that the distance from Rome to Camillus was approximately 50 miles and that would be difficult for him to have the visitation with Megan. He however testified upon cross examination that during his drive from Tonowanda on the thruway to Rome, he could pick Megan up in Camillus if the change did occur and he could furthermore, alternate his work schedule to see her. He currently sees Megan every weekend. Upon cross examination, Mr. S. testified that he talked to Megan before the pre-trial if she wanted to live in Camillus and that he would drop the whole matter if she did. The obvious inference to the court is that she does not wish to move to Camillus. This speaking to Megan was done in spite of the fact that the infant child had her own attorney, Mr. Nasci, law guardian, and he was not consulted prior to Mr. S.'s discussing this with Megan, nor given permission by the law guardian or court to so speak to Megan

Mr. S. testified that Rachel never told him she was moving to Camillus, that Megan told him this in December 2004. However, Mr. S.'s petition dated November 24, 2004, includes an allegation that [*8]"Rachel has told me she plans to move and buy a house with her new boyfriend..." is a contradiction of the testimony of Mr. S. in this regard.

Mr. S. effectively stated that he has many relatives in the Utica/Rome area who have contact with Megan. His father does live in the Syracuse area, but he doesn't have any contact with him. Rachel H. testified that she has relatives in the Utica/Rome area as well. She also has relatives in the Syracuse area.

In regard to the testimony of the breakup between Kirsten B. and himself in April - June 2004, Mr. S. testified he did not recall having sexual relations with Rachel while he was broken up with Kirsten, nor does he recall having sexual relations with Rachel in 2004. Rachel H. originally testified that she did not recall having sexual relations with Mr. S. during the break up of Kirsten B. from April - June 2004 (Ms. H. remembers the break up period being April - July 2004). She testified however, that he was trying to get her to move to Tonowanda during this period of time and that furthermore he was coming around her premises in Rome and had stored some items in her garage. Upon further inquiry, she did state that she had intimate relations with Mr. S. of kissing and touching during this period.

In regard to this break up, Kirsten B., the paramour/fiancé of Timothy S., testified during the trial that she has heard Tim S. tell Megan that he wants her to live with them. Ms. B. testified that Mr. S. moved out of her premises at Sunset Avenue in Rome in 2004 but moved back in approximately the end of December 2004. Ms. B. further testified that currently, Mr. S. and she do share a bedroom from approximately when he moved back in December 2004 up to the current time. Ms. B. also testified that Megan knows that she and Tim are sharing a bedroom. One of the allegations of Mr. S. in regard to his petition requesting modification of the prior order of the court, is the sleeping arrangements of Ms. H. with Mr. A.. The court finds the inconsistency between his position relative to Ms. H. and Mr. A. important in its determination upon this petition in regard to his committing the same acts with Ms. B. he finds objectionable by Ms. H. and Mr. A..

There was testimony by Marsha Cain, who is Megan's school counselor, that she advised Ms. H. to continue the counseling of Megan in school, which had previously continued. Ms. H. had unilaterally stopped the counseling and made an appointment for another counselor. Ms. H. testified that she believed Marsha Cain had maintained that the school counseling could cease if Ms. H. obtained another counselor for Megan. Ms. Marsha Cain specifically testified that she, as a mandated reporter, called an "800" line of the child abuse services on March 28, 2005 regarding Megan. Thereafter, Ms. H. withdrew her permission for counseling to continue with Megan with Ms. Cain on April 1, 2005. Ms. Cain further testified she gave Ms. H. the names of outside counselors for family counseling only and that she never told Rachel H. to discontinue counseling of Megan in the school. In fact, Ms. Cain testified she specifically told Ms. H. that the outside counseling was family counseling and to continue the counseling in school with Megan. The court credits Ms. Cain's version as the correct version.

This discontinuance of the counseling of Megan with Ms. Cain without consulting Mr. S. could have [*9]been a violation of the May 6, 2002 order of Judge Griffith by Ms. H. if a violation petition had been filed. It would amount to a violation of said order by Ms. H. in regard to the necessity of having an agreement relative to obtaining and/or continuing counseling with the child. However, no violation petition was filed by Mr. S.. Furthermore, there was testimony that initially when Ms. H. set up the outside counseling for the child on a previous occasion, Mr. S. obtained notice from his insurance company in regard to the billing and had not been consulted regarding the contact of this outside counselor for Megan. This may have likewise been a violation of the court order of Judge Griffith. However, once again, no violation petition was filed by Mr. S..

Joanne P., who is the daycare provider for Megan and has been so for approximately one and one half years, testified that Megan is always properly dressed and well kempt and has never smelled badly. While Kirsten B. testified that often times Megan is unkempt, disheveled, and smells of cat urine, this testimony is not buttressed by the testimony of any independent non-biased witnesses such as her teacher Ms. R. or her daycare provided Ms. P.. The court discredits Ms. B.'s testimony in this regard. It was obvious that there was animosity by Ms. B. to Ms. H. via Ms. B.'s testimony. However, likewise, there is animosity toward Ms. B. in regard to her involvement with Megan by Ms. H.. More particularly, there was a conference between Mr. S. and Ms. R., Megan's teacher, during a "jump-a-thon" when Mr. S. had his paramour, Ms. B., in the conference with Ms. R. speaking about Megan. Ms. H. entered the conference and was crying and upset because Ms. B. was present during the conference with Ms. R..

Tracy C. was called as a witness, who had been a previous worker with Mr. S. at the Turning Stone Casino prior to him commencing work with the State of New York in his present capacity. She testified she has seen Megan jump in Eddy A.'s lap and hug him independently. She testified that in her opinion, Mr. S. was a very controlling person and arrogant. She candidly admitted she doesn't like Timothy S..

Mr. Edward A. testified, who is Ms. H.'s paramour. He has a BA in Political Science from Oswego State, which he received in the Fall of 1991. He presently works for the United Food and Commercial Workers Union as a labor organizer and he makes $56,000 a year. He works around New York State Monday thru Friday and he is home usually on Friday afternoons and leaves Monday mornings for work. He met Rachel in approximately July 2004. He purchased the house at 111 East Arbordale Road, Camillus, with her involved in looking for the house as well. He testified that he gets along well with Megan and he never has any particular problems with her and he cares for her.

Timothy S. testified he went to Proctor High School, then to Utica College and got a BA in Political Science in August 2000. At the time the agreement was entered, he had his residence in Utica, but was working in Massena. He further testified Megan is a fun child, happy and doing well in school. Tara H., the daughter of Rachel, at the time of the trial was 15 years old, did testify that Timothy S. did call back many times on Rachel's phone. She further testified that Tim would keep calling even after he had talked to Rachel on the phone. In this court's opinion this buttresses the testimony of Ms. H. relative to the constant calling by Mr. S. as alleged in her petitions. Tara further testified she [*10]has gone to Camillus with her mother Rachel and seen the house and that it's nice. She testified there is plenty of room and that she would visit with her there.

ANALYSIS

Insofar as the factual testimony received and the court's observation of the witnesses and the assessment of their credibility, in regard to Mr. S.'s petition to modify custody to award Megan to him, finds that Mr. S. has not met his burden of proof by a preponderance of the evidence. The testimony of Ms. R. and in fact Mr. S., demonstrates that Megan is doing well in school. Ms. R. and Ms. P. further testified that Megan is well kempt, well dressed, and never appears disheveled. This is in direct contradiction to the testimony of Ms. B..

Mr. S.'s allegation that Megan does not like being hugged or kissed by Mr. A., while the court keeps in mind its in-camera interviews of the infant child, finds this insufficient basis for a change of custody. The court finds the testimony of Ms. C. cogent relative to her statement she has seen Megan independently, without prompting, kiss Mr. A. and jump in his lap. Mr. A.'s testimony is unimpeached insofar as this court is concerned relative to his care for Megan and his ability to properly take care of her when Ms. H. is not present.

In any event, the court must deal with the present situation and not the speculative nature of Mr. S.'s potential change in location. While Mr. S. went to great lengths to demonstrate that he does not reside in Tonowanda and that his residence is in Rome, New York at Sunset Avenue with Kirsten B., this is belied by the actual nature of his current employment and logistics. He, at least, has an apartment in Tonowanda, New York, and stays there 4-5 days per week effectively. Although he indicated that he could change the time of his work so that he could be in Rome more, and that if need be, he would quit his job and move to Rome and/or that he is anticipating employment at the Turning Stone Casino, these scenarios are all speculative in nature. The current situation is that he works in Niagara Falls five days per week and has visitation with Megan on the weekends.

Megan is doing well in school and is well adjusted. Although testimony was received relative to Megan deteriorating in her emotional status, this is not unheard of or unanticipated regarding her involvement in this custody battle between the father and the mother. However, the indication is by the testimony by Mr. S., as well as others, that Mr. S. has kept her directly involved and informed of these custody/visitational proceedings by speaking to her of these matters. More particularly, he has done so when in fact, Megan has had her independent lawyer, who was not consulted, Mr. Nasci.

There is a prior agreement between the parties regarding joint legal custody and primary physical custody to Ms. Rachel H. herein. In order for a modification of custody to take place, a change of circumstances must be demonstrated [see, e.g. Mtr of Reese v. Jones, 249 AD2d 676 (3rd Dept. 1998); Mtr. of Baker v. Ratoon, 251 AD2d 921 (3rd Dept. 1998); Fox v. Fox, 177 AD2d 209 (4th Dept. 1992)]. [*11]

While the court must consider the wishes of the child, and be cognizant of its two in-camera interviews with Megan, an infant's desires, while they should be considered in establishing visitation and/or custodial arrangement, may be influenced by either parent and may not be in the best interest of the child [see, Friederwitzer v. Friederwitzer, 55 NY2d 89 (1982 ); Mtr. of Nehra v. Uhlar, 43 NY2d 242 (1977)]. The court's decision cannot be based solely on the wishes of the child [see, Eschbach v. Eschbach, 56 NY2d 167 (1982)].

The court finds the manner by which Ms. H. was and is taking care of Megan, in spite of her inability to comply with the custody/visitational agreement in regard to counseling as referred to herein, demonstrates that she loves Megan, is an appropriate caretaker and there is nothing in the home environment that demonstrates that a change of custody should take place. More particularly, Mr. S. has failed to meet his burden by a preponderance of the evidence to demonstrate a change of circumstances to modify the present custodial arrangement. Furthermore, the court must consider its finding relative to the violation of the court order petition and petition alleging a family offense, supra. The court found that Mr. S. did commit the acts alleged in both petitions. Pursuant to § 240-1(a) of the Domestic Relations Law:

...the court must consider th affect of such domestic violence upon the best interests of the child, together with such other facts and circumstances as the court deems relevant in making a direction pursuant to this section (Domestic Relations Law §240-1(a))...N.Y.Dom.Rel. Law § 240-1[a] (McKinney 2003).

The court finds that the actions of Mr. S. during the incidents alleged in the violation petition and the petition alleging the family offense, demonstrate that he cannot, or will not, control his temper and he believes that he may control situations regarding Megan. More particularly, he did not consider Megan's presence during the incidents which resulted in the court finding a violation as hereinbefore described. The court has found a violation of a court order and Mr. S. did commit a family offense under the "O" docket petition. The court further finds that he has not met his burden by a preponderance of the evidence to show a change of circumstances necessitating a change of custody of Megan to him and that same would be in her bests interests. The court therefore DENIES his petition for modification.

PETITION MODIFICATION TO CHANGE RESIDENCE

PETITIONER RACHEL H.

The last petition this court considers regarding the three days of testimony taken, is that of Ms. H. to be allowed to change residence from Rome, New York to Camillus, New York with Megan. Ostensibly, the testimony indicated that the reason was the better school district of West Genesee, which Megan would be enrolled in as opposed to Rome. The testimony indicated that Megan is doing well at the Rome City School District and the court cannot find a sufficient basis in the record to demonstrate that West Genesee is more appropriate or superior for the change of location in and of itself to be granted.

The court finds, in regard to its assessment of the credibility of Rachel H., that the actual reason she is requesting a change of custody is two fold: [*12]

1)That her paramour, Mr. A., has bought a premises in Camillus, Ostensibly for all of them as a family unit, should they get married; and

2)That she has changed her employment from Oneida County to Onondaga County wherein she has increased her income $6,760.

Furthermore, based upon the testimony of Mr. S., the distance from Rome to Camillus is 50 miles wherein previously, until he changed residence in December 2004 or January 2005, to Rome residing with Ms. B., he would have commuted 18 miles to visit with Megan in Rome if Utica was is "actual residence". Effectively, therefore, the additional distance Mr. S. would travel, from what he use to travel prior to December 2004 or January 2005, to visit Megan to pick her up, would be 32 miles. Under the current situation, Mr. S. travels the thruway from Niagara Falls or Tonowanda, whichever the case may be, currently and could pick up Megan at the Camillus home on his way to Rome. It is not out of the way for him to travel on the thruway and pick up Megan. More particularly, Ms. H. testified that she would make arrangements for Megan to be at a thruway point in the Syracuse/Camillus area so that he could get off the thruway and get back on to continue his travels from Tonowanda or Niagara Falls to Rome. In fact, Mr. S. testified in regard to certain exhibits which were received in evidence as to his toll records of traveling the thruway, that he gets on and off periodically for the purposes of saving money on the tolls.

If the court, under the present circumstances, awarded custody to Mr. S., there would be no one to care for Megan at the present time in that at least 4, if not 5, days a week, he would be located in Tonowanda. He would be in Tonowanda 4-5 days a week while Megan would be cared for, pursuant to the court's determination from the testimony, by either Ms. B. or Ms. B.'s mother. Mr. S. would not be caring for or even seeing her 4-5 days each week. Mr. S.'s statements that he will eventually obtain employment at the Turning Stone Casino or immediately quit his job so that he could have custody of Megan, while hoped for, and anticipated, is not the current the situation. If the court was to grant custody to Mr. S., he would have to make arrangements to quit his job immediately and/or move immediately, to Rome for other employment.

While the testimony indicated that Mr. S. has relatives in the Utica/Rome area, there was not development in the record insofar as the extent of the relationship between them and Megan. More particularly, in light of Tropea v. Tropea, 87 NY2d 272, (1996), there is no testimony that the disruption of effectively 50 miles would inhibit there potential relationship whatsoever. In fact, Mr. S., upon picking up Megan on his way from Tonowanda to Rome at some place at a thruway stop, would not have suffered any loss of visitation whatsoever with Megan if the court orders further arrangements relative to the visitation herein.

Of course, it is Ms. H.'s burden to demonstrate by a preponderance of the evidence, that the move is in Megan's best interest. There was little, if any, testimony that the change of school districts from the Rome City School District to West Genesee School District would cause any detriment or harm to Megan. There is little, if any, testimony that the move from the Rome City School District to West Genesee School District would cause a detriment to best interests of Megan insofar as her relationships with friends in Denti Elementary school are concerned. In fact, the testimony of Ms. Rachel H. was that in the event the court did not allow her to move from Rome to Camillus, she [*13]would move to the closest point to the Onondaga County border that she was able to move to so that she could continue her job in the Onondaga County Department of Social Services where she had a substantial increase in pay. Any inference that the change in school districts would be detrimental to Megan, is not demonstrated in that Ms. H. could still move from Rome City School District anywhere within Oneida County, should the court not allow the change to Camillus.

In spite of the law guardian's recommendation that Ms. H. not be allowed to move to Camillus, he recommended to the court that the residence of Megan be continued in Oneida County. This effectively allowed, via the recommendation, Rachel H. to move anywhere in Oneida County, which could result in a change in school districts. In fact, a move to any other area in Oneida County, potentially could be more detrimental to Megan and in fact, would be outside the Rome City School District. Therefore, allowing Rachel H. to move anywhere in Oneida County amounts to the same effect of allowing Ms. H. to move to Camillus insofar as a change in school district is concerned.

ANALYSIS

Under the Tropea, supra, standard, if this was effectively a relocation case, the court stated:

...each relocation request must be considered on its own merits with due consideration of all the relevant facts and circumstances and with predominant emphasis being placed on what outcome is most likely to serve the best interest of the child..."

Tropea, supra at 739

The considerations the court must take into account under a Tropea analysis are:

1)If the reasons for the custodial parents move are valid and sound;

2)The good faith of the non-custodial parent opposing the move;

3)The child's respective attachments to the custodial and non-custodial parent;

4)The possibility of devising a visitation schedule that will enable the non-custodial parent to maintain a meaningful parent/child relationship;

5)The quality of the lifestyle that the child would have if the proposed move were permitted or denied;

6)The negative impact, if any, from continued or exacerbated hostility between the custodial and non-custodial parent; and

7)The effect the move may have upon any extended family relationships.

Tropea, supra at 740

The Tropea court further went on to state a consideration would be "...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 non-custodial parent and the child through suitable visitational arrangements..." (Tropea, supra at 741).

More importantly, the Tropea court went on to say in regard to allowing a change, or not, of residence, that:

...relocation determinations are not to be made as a means of castigating one party for what the other [*14]deems personal misconduct, nor are the courts to be used in this context as arbiters of the parties respective guilt or innocence. Children are not chattel and custody and visitation decisions should be made with a view toward what best serves their interests, not would reward or penalize a purportedly innocent or blameworthy parent...Tropea, supra at 742

In regard to the Tropea analysis, in the context of relocation cases, usually an application to change residence is made for a greater distance than 50 miles, which mandates the consideration of the Tropea factors. The agreement entered between the parties that was incorporated in the May 6, 2002 order of Judge Griffith, did not provide a geographical area wherein the parties were mandated to reside with Megan. It is interesting to note this, in that all parties were represented by counsel and the same law guardian in the present case was law guardian in the prior case wherein the agreement was embodied in the order of Judge Griffith. The agreement went to great lengths consisting of three pages to provide mandates upon both parties relative to the custodial/visitational arrangements between them. However, nowhere in the agreement is a limitation placed upon Ms. H. that she could not move outside the County of Oneida, unlike agreements that provide that a party may not move outside a county or outside of a school district (see Piazza v. Piazza, — Misc.2d—, 2002 WL1769923 (Family Court, Oswego County, July 23, 2002).

In the case of Carlson v. Carlson, 248 AD2d 1026 (4th Dept., 1998), the parties stipulated in the agreement that the children could not be moved out of the Cassadaga School System. Three months after the divorce decree was entered that embodied that mandate, the plaintiff moved approximately 25 miles to a different school system. The court considered the Tropea analysis and allowed the relocation. The plaintiff therein, had demonstrated sufficient evidence to show that she had attempted to find sufficient housing in the Cassadaga School System and that the move was motivated by the failure of that attempt together with her impending remarriage and the opportunity to improve her economic situation. The court therein stated that "...although the relocation will affect the existing visitation schedule, the overall impact on the relationship between the defendant and the children will be minimal in view of the distance (25 miles)..." (Carlson, supra at 1027).

The court went on to say "...indeed the evidence fails to establish that the Cassadaga Central School District is superior to the Panama Central School District or that the children's lives would be enhanced educationally by remaining within the Cassadaga School District System..."(Carlson, supra at 1028). The decision in Carlson, in spite of the fact that the divorce decree provided that the children would remain in the Cassadaga School System.

In the case of Boyer v. Boyer, 281 AD2d 953 (4th Dept., 2001), the custodial parent who was residing in Onondaga County requested to relocate to Jefferson County, an adjoining County. The Family Court Judge considered a Tropea analysis and denied the grant of the relocation to the mother. The Appellate Division reversed. The Appellate Division's analysis stated that "...the primary physical residence of the child has been with petitioner (mother) and petitioner has been primary caretaker since the child's birth...The relocation will enhance the financial situation (emphasis added) of petitioner and the child..."(Id. at 953). The Family Court was reversed and the Appellate Court allowed the relocation finding the economic analysis and the Tropea factors to be paramount together with the long term arrangement of the mother being the custodial parent of the child. [*15]

In the case of Sean Ir v. Jennifer JB, 251 AD2d 1034 (4th Dept., 1998), the Appellate Court reversed the Family Court, which denied relocation from Niagara County wherein the mother was located, to Wayne County, where her family resided. The court succinctly stated "...the best interests of the child will be served by permitting respondent to retain custody upon her relocation to her family home in Wayne County while granting petitioner liberal visitation rights..."(Id. at 1034).

In relocation cases, wherein a substantial distance for a move is alleged, some Appellate Courts have inferentially reasoned a 50 mile radius, as not being effectively a relocation case. In the case of Siler v. Siler, 293 AD2d 826 (3rd Dept., 2002), the petitioners sought to move to Pennsylvania with the infant children. The Family Court conditionally granted custody (it was the initial application for custody) to petitioner only if she relocated within 50 miles of Gloversville, which was where the children had resided with petitioner until she sought to move to Pennsylvania, some 247 miles away. Furthermore, in the case of Leslie v. Leslie, 188 AD2d 620 (2nd Dept., 1992), petitioner sought to relocate to Virginia with the parties minor son. The Trial Court allowed the plaintiff wife to relocate to Richmond, Virginia with the son. The Appellate Court reversed the Trial Court and directed that the wife would have sole custody of the child only if she returned to live in a location that was within 50 miles of the husband's residence.

The two aforesaid Appellate Courts in the Second and Third departments have defacto set a bright line rule that a move within 50 miles from the location of the children's present residence is not effectively a "relocation" which would inhibit the visitation and/or arrangements that pre-existed.

The court, in considering the issues outlined in Tropea, if 50 miles is considered a relocation which would trigger the Tropea analysis, finds the following:

1)The court finds Ms. H.'s reasons for moving are not surreptitious, but are in good faith. She seeks to marry Mr. A. and move into a house where he is located in Camillus, New York. Furthermore, effectively, she has increased the economic situation of Megan and herself by obtaining employment at some $6,760 more than she previously earned in Oneida County.

2)The court finds the quality of the relationship between the child and the custodial and non-custodial parent not to be inhibited by the move. Effective arrangements can be made so that the visitation of Mr. S. are not inhibited.

3)The court finds that Mr. S.'s currently arrangements of traveling from Tonowanda to Rome and his living in Tonowanda four to five days a week are not going to be affected by the change of residence to Camillus.

4)The court finds the child's financial situation to be enhanced by the move economically. The court finds from the testimony of Mr. A. and Ms. H. and the lack of testimony as to any detriment of the relationship with Mr. A. to Megan to demonstrate that there will be an effective step-parent arrangement between Mr. A. and Megan should the move be allowed.

5)The court can make suitable visitational arrangements such that it will preserve the non-custodial parent's visitation.

6)The negativity and animosity between the parties under the current situation will not change. Effectively, the parties are not getting along at the present time and the court finds that mainly because of the relationship each party has with their respective paramours, Kirsten [*16]B. with Mr. S. and Eddy A. with Ms. H.. Any animosity because of these relationships that exist, will continue to exist with the hope, however, that both Ms. H. and Mr. S. can, for the benefit of the child, accept the relationship each party has with their respective paramours on a more adult level.

7)The court finds that there will be no meaningful effecting of any extended family relationship because the of the distance of the move that is taking place.

The court therefore, does herewith allow the relocation of Rachel H. to Camillus, with Megan, and finds same is not detrimental to the best interests of Megan. The court is mindful of the two in-camera interviews it had with Megan with the law guardian. However, as previously stated in this decision, the wishes of the child are not paramount when the court finds other substantial factors countervailing. Furthermore, the court is of the opinion that the wishes of the child are, to some degree, affected by Mr. S.'s speaking with the child about these custodial/visitational arrangements which he admitted without the consent of the law guardian. While the law guardian has represented his client vigorously and his written closing arguments were thoughtful and thorough, the court is not obligated to accept his recommendations as to the relocation petition as long as the court's decision has a sound and substantial basis in the record [see, Sienkwicz v. Sienkwicz, 298 AD2d 396 (2nd Dept, 2002)].

VISITATIONAL ARRANGEMENTS

The court, in allowing the relocation from Rome to Camillus, must keep in mind the present visitational arrangements between the parties. Effectively, Mr. S. has visitation with Megan on weekends, Saturday through Monday. However, Mr. S. had testified that he can make sufficient arrangements with his employer that he can get off earlier hours. Therefore, the court directs the following:

1)Visitation with Mr. S. will take place from 7:00 pm on Friday through 6:00 pm on Sunday the first three weekends of each month. Ms. H., or any adult designated by her, shall transport Megan so that she will meet Mr. S. on a thruway exit in the Camillus/Syracuse area for pick-up. Mr. S. shall deliver Megan at either a thruway exit in the Camillus/Syracuse area on Sunday at 7:00 pm, or, if he is not returning to Tonowanda, then at the Rome thruway exit where Ms. H. will pick Megan up. The parties may change the pick-up and drop-off locations if they both so agree.

2)The parties hall continue joint legal custody of Megan.

3)Mr. S. shall have such other and further visitation on an open and liberal basis as the parties may agree.

4)Mr. S. shall be entitled to two uninterrupted weeks of visitation in July and two uninterrupted weeks of visitation in August of each year. Ms. H. shall likewise be entitled to two uninterrupted weeks of visitation in July and two uninterrupted weeks of visitation in August of each year with Megan. Mr. S. shall inform her in writing by May 1st of each year as to which two consecutive weeks in July and which two consecutive weeks in August he wishes the child. Those four weeks shall not be consecutive. While either party has the child for the two uninterrupted weeks in July and two uninterrupted weeks in August, either party [*17]shall be allowed telephonic contact with the infant child each day at a reasonable hour.

5)Mr. S. shall have the child's winter break commencing the year 2005 and Ms. H. shall have the spring break from school commencing 2006. The parties shall alternate the breaks every year such that in 2006 Ms. H. shall have the winter break and in 2007 Mr. S. shall have the spring break. Again, while one of the parties has the break with the child, the other party will be allowed telephonic contact on a daily basis with said infant child.

6)Beginning with Easter 2006, the parties will alternate the following holiday visitations with their daughter: Easter, Memorial Day, July 4th, Labor Day, Halloween, Thanksgiving, and Christmas.In the event Mr. S. has a scheduled visitation with Megan the weekend of a holiday, he shall continue the visitation until 7:00 pm the Monday of that holiday.

7)If either parent is required to work on any major holiday, their child will be with the parent not scheduled to work on said holiday; except as both parties may mutually agree.

8)Commencing with the year 2005, the father will have overnight visitation every odd year from between 1:00 pm tp 2:00 pm Christmas Eve until between 9:00 am to 10:00 am Christmas morning.

9)Commencing with the year 2006, the father will have their daughter with him every even year on Christmas Eve until between 9:00 pm to 10:00 pm that evening.

10)The parties will each have visitations with their daughter on her birthday at time and places as both parties may mutually agree.

11)Neither parent will do or say anything that will hamper a peaceful exchange during any visitation drop-off or pick-up of their daughter; not permit any third party to do the same.

12)The parties will each be with their child the majority of the time when their daughter is with each individual parent.

13)Each party will have appropriate clothing for their child at each of their individual residences and that upon their daughter's return to the mother's residence, the clothing that the child was wearing when she went to the father's residence will be returned to the mother's residence. Upon their daughter's return to the father's residence, the clothing that the child was wearing when she was returned to the mother's residence will be returned to the father's residence.

14)Except for pickup and drop-off of their child for visitation, each party will stay away from each other and their individual residences.

15)Each party will abstain from the use of vile, obscene or threatening language towards the other and will not contact each other except by telephone and will telephone only to discuss visitation and the health and well being of the child.

16)Neither parent will argue or fight or speak ill of each other, toward each other or to any third party, while in the presence of the child. Neither party will permit any third party to speak ill of either party, nor fight and/or argue while in the presence of their child.

17)The parties child may be temporarily taken out of the State of New York by either parent for a visitation upon a minimum of one week's prior notice to the non-participating parent. Such notice is to include the duration, location and a contact number for and of the temporary out of New York State address.

18)Any necessary medication for their daughter will be transported to and from any visitation.

19)The parties will fully discuss any extra curricular activities with each other. [*18]

20)Mr. S. will be entitled to all medical, dental, psychological and educational information from the providers to Megan of these services. Ms. H. will, at least on a semi annual basis, give to Mr. S., in writing, a list of names and addresses of such providers.

21)Ms. H. shall inform Mr. S., in writing, of any major decision of a non-emergency nature that affects Megan at least 30 days prior to such decision taking effect.

22)The daughter will have a separate appropriate bed to sleep in whenever she is with each individual parent.

23)The daughter will be properly fastened with a seat belt as the law requires when riding in a vehicle.

24)The daughter will wear an appropriate life vest when in a boat. The daughter will be properly supervised by the parent with the child whenever the child is around a stream, lake, river or swimming pool.

25)Any previous orders regarding only custody and visitation of the infant child Megan are hereby vacated.

26)All future matters regarding custody, visitation, modification and enforcement of this order are hereby referred to the appropriate Family Court.

Counsel for the Petitioner, Rachel H., is to submit an order to the court consistent with this decision within ten (10) days from the receipt of same.

________________________________________

Hon. James W. McCarthy

Acting Supreme Court Justice

Dated: June 28, 2005

at Oswego, New York.

Footnotes

Footnote 1:The agreement further provided numerous other decretal paragraphs not specifically relevant to the instant petitions.