LG v JG

[*1] LG v JG 2006 NY Slip Op 52185(U) [13 Misc 3d 1239(A)] Decided on November 21, 2006 Supreme Court, Suffolk County Pastoressa, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 21, 2006
Supreme Court, Suffolk County

LG, Plaintiff

against

JG, Defendant.



04-15398



Attorney for Plaintiff

John A. Reno

150 E. Sunrise Highway

Lindenhurst, NY 11757

Attorney for Defendant

Christopher Battaglia

120 Broadway, 29th Floor

New York, New York 10271

Law Guardian

Robert G. Venturo

One Suffolk Square Suite 500

Islandia, New York

Joseph C. Pastoressa, J.

In this action for divorce, the parties settled all issues of custody, visitation, child support, equitable distribution, and maintenance, but were unable to resolve the plaintiff wife's request and the defendant husband's refusal to allow the children of the marriage to visit with the plaintiff wife for a period of six weeks over the summers in the State of Florida where she currently resides. The court conducted a trial on this discrete issue at which the plaintiff and the defendant testified, and in [*2]camera interviews of the children were conducted.

Based on the credible evidence adduced, the court makes the following findings of fact and conclusions of law:

The parties, LG and JG (hereafter referred to as the plaintiff/wife and defendant/husband, respectively), were married on July 27, 1991, and have two children together: CJ, (11 years old), and NT, (nine years old). This divorce action was commenced on August 30, 2004.

The precipitating cause of the party's estrangement was the plaintiff's acknowledged and ongoing affair with an individual named JL. The plaintiff wife met JL in August 2004, when she and the children were on vacation visiting her mother in Port Charlotte, Florida. The defendant husband learned of the affair when his oldest son CJ told his father that he saw the plaintiff and JL in bed together during the August 2004 vacation, with the plaintiff partially disrobed. The affair was subsequently confirmed by the plaintiff's own mother. The plaintiff left the defendant and the marital residence at that time, choosing to stay in Florida with JL, rather than return to her husband and children in New York. The plaintiff admitted at trial that she did not see her children or ask to visit her children or make any application to court for visitation with her children, for an entire year from August 2004 to August 2005. The plaintiff further admitted that she left her children without saying goodbye or giving them the benefit of any explanation or warning that she would not be returning. The plaintiff concedes that of her own choosing she has only seen her children a total of four times from August 2004 to date.

The defendant objects to the proposed summer visitation in Florida because of the children's reticence to go, and reticence to fly alone, but, most important, because of the defendant's fear that the children will be exposed to, and have contact with, the plaintiff's paramour. The defendant, who is a Corrections Officer, describes the plaintiff's paramour as a criminal, a convicted felon, and a general undesirable who should not be in contact with his young children. The plaintiff herself [*3]acknowledges that her paramour JL was an alcoholic, and has a prior criminal record, having done significant State time on at least two occasions in other States including the State of Rhode Island. The plaintiff further conceded that JL has numerous convictions for driving with a suspended license, and was arrested yet again as recently as this past August 2006 in the State of Florida. The plaintiff also acknowledges that JL has a 15-year old son, but neither has custody of the child, nor has any visitation or contact with him. The plaintiff's proposed summer visitation would be at the plaintiff's current residence which she shares with a woman named Vicky, and which residence is nearby to JL's residence. Further, the plaintiff is currently working for JL as a secretary.

The court shares the defendant's well-founded concern for the welfare of his children given what is currently known about JL, and the practical reality that a court order directing no contact with JL would be difficult, if not impossible, to police and enforce. The children are by all accounts thriving with the defendant, doing well in school, and participating in sports and extracurricular activities. To his tremendous credit, the defendant has accomplished this yeoman's task of being a great parent to these children on his own, and further, has magnanimously gone out of his way to maintain his children's contact with their maternal grandparents, with whom he shares a good relationship, as well as with the children's cousins who are the children of the plaintiff's sister, with whom the defendant also enjoys a good relationship. As for the children themselves, this court's in camera discussion with them reveals two sweet boys who appear to be adjusting as well as can be expected, given the circumstances, but who both, quite clearly, bear the emotional scars and trauma of their mother's still fresh abandonment. Indeed, when this court broached the topic of the proposed summer visitation, the youngest child strongly resisted, and the oldest boy broke down in tears, and stated that he did not want to go, because he did not want to be around JL whom the child said, in tears, that he disliked because "he wrecked our family and made our mom [*4]leave." Both children confirmed that, despite the plaintiff's testimony to the contrary, they have driven unsupervised with JL.

Thus, in addition to disrupting the oldest child's summer sports schedule, and subjecting both children to the risk of exposure to an individual who should not be around them, the proposed visitation would be forced upon both of the children at a time when they are still reeling from the emotional havoc wreaked upon them by the plaintiff.

This court is often faced with difficult and trying decisions, involving what might be colloquially referred to as close calls, but the case at bar is not such a case. Clearly, the plaintiff's application must be denied. In all matters of child custody and visitation, it is the best interests of the children which controls, not the personal preferences, convenience or best interests of one parent vis-a vis the other(see, Matter of Tropea v.Tropea, 87 NY2d 727; Eschbach v. Eschbach, 56 NY2d 167, 171; Friederwitzer v. Friederwitzer, 55 NY2d 89; Braiman v. Braiman, 44 NY2d 584). Here, the childrens' best interests will be served by denying the request for Florida visitation. The defendant father has openly encouraged parenting time for the plaintiff with the children in New York, and is completely open and flexible with regard to scheduling same. Whatever inconveniences may befall the plaintiff, they must be viewed as an unfortunate fallout from her unilateral decision to relocate with JL, an individual of questionable repute and character.

Accordingly, the application is denied.

Settle Judgment on Notice.

Dated: November 21, 2006

Central Islip, New York

HON. JOSEPH C. PASTORESSA

J.S.C.