S.A. v J.P.

[*1] S.A. v J.P. 2008 NY Slip Op 52426(U) [21 Misc 3d 1139(A)] Decided on November 20, 2008 Family Court, Westchester County Duffy, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 20, 2008
Family Court, Westchester County

S.A., Petitioner,

against

J.P., Respondent.



J.P., Petitioner,

against

S.A., Respondent.



V - 05292-00/07L



William Penny, Esq.

Attorney for Shawn Adams

10 Forest Lance

Scarsdale, New York 10583

David Rosoff, Esq.

Attorney for Joyce Perryman

550 Mamaroneck Avenue

Harrison, New York 10570

Kenneth L. Bunting, Esq.

Law Guardian

Bunting-Smith & Bunting

125 Dobbs Ferry Road

White Plains, New York 10607

Colleen D. Duffy, J.

This case has had a long history before this Court as detailed extensively in this Court's Decision and Order After Fact Finding, entered June 10, 2005 (hereinafter the [*2]"2005 Order")[FN1], and adopted herein by reference. In short, for virtually the entire life of the Subject Child (DOB: 1/16/00) (hereinafter, the "Subject Child"), the parties have been litigating matters specifically, family offense proceedings, writs of habeas corpus, custody and visitation disputes in Family Court and the Appellate Division Second Judicial Department, Supreme Court of the State of New York.[FN2]

With respect to court filings by the parties subsequent to the 2005 Order, as noted above, Ms. P appealed the 2005 Order to the Appellate Division. Thereafter, on March 29, 2007, only three months after the Appellate Division affirmed the 2005 Order, Ms. P filed one of the several petitions now pending before the Court. She filed another such petition on April 30, 2007. The March and April 2007 petitions alleged that Mr. A violated the visitation schedule and telephone access with the Subject Child as set forth in the 2005 Order.

On May 14, 2007, Mr. A filed a petition for a writ of habeas corpus claiming that when he was unable -due to financial circumstances - to pick up his daughter at Ms. P's home after a visit with Ms. P pursuant to the 2005 Order, Ms. P refused to return the Subject Child to New York. The Court refused to issue a writ and dismissed the petition noting that the 2005 Order requires Mr. A to pick up his daughter from Ms. P's home and that Ms. Perryman was not mandated to travel to New York to return the Subject Child to Mr. A. Mr. A did not allege that he went to Ms. P's home to obtain the Subject Child.

All parties and counsel were present at a court proceeding on May 18, 2007

regarding Ms. P's filed petitions. At that time Ms. P expressed her concern that Mr. A planned to relocate the Subject Child to Maine which would prevent her from having visitation with the Subject Child as set by the 2005 Order. Accordingly, this Court issued an interim order (hereinafter the May 2007 Interim Order) directing that the Subject Child's residence remain in New York State to allow for the visitation between Ms. P and the Subject Child as provided in the 2005 Order to continue to be effectuated.[FN3]

Thereafter, on July 23, 2007, Mr. Adams filed two petitions before this Court seeking (1) modification of the 2005 Order to allow him to relocate with the Subject Child to Maine, and (2) alleging that Ms. P violated the 2005 Order with respect

to visitation. [*3]

On September 21, 2007, Ms. P filed a petition for a writ of habeas corpus alleging that, contrary to this Court's May 2007 Interim Order, Mr. A. had relocated the Subject Child to Maine and failed to disclose the Subject Child's whereabouts to her and failed to comply with the 2005 Order regarding visitation between Ms. P and the Subject Child.

The Court held an in camera hearing with the child on May 9, 2007 and a fact finding matter on these petitions on February 4, 5 and 14, 2008. The parties testified as did Sean P, husband of Ms. P. The Court has considered all of the credible testimony and evidence, including the sealed testimony elicited during the in camera hearing and preserves that sealed record for future review.

While the Court has considered all of the testimony and evidence submitted, given the extensive nature of the record, the Court will address only the crucial testimony and documents critical to its decision on the best interests of the Subject Child.

Although these matters began as allegations by Ms. P that Mr. A failed to comply with the Court's 2005 Order, the case soon erupted into a new battle for custody when Mr. A relocated the Subject Child to Maine in contravention of the Court's May 2007 Interim Order. Ms. P contends that Mr.A has violated the Court's 2005 Order regarding her visitation and that because he also violated the May 2007 Interim Order, the only way she may have significant contact with the Subject Child is for her to have sole legal and physical custody. Mr. A on the other hand wants the Court to ignore his blatant violation of the Court's Order not to relocate the Subject Child to Maine before the hearing on the issue and to dismiss Ms. P's petitions.

This is one of the worst type of custody cases before the Court two parents who apparently hate each other more than they love their child. In light of the history of the parties, the likelihood is that notwithstanding this decision and order litigation between them about the Subject Child will continue until she turns 18.[FN4] Indeed, Ms. P is quite obvious about her litigation zeal admitting at trial that she "told [the Subject Child] that when she turned 12 she can choose [with whom she wants to live]." [Feb. 4 Tr. pp.45-46] Such statement evidences a clear intent by Ms. P to continue to litigate the issue of the Subject Child's custody until, presumably, she obtains custody or the Subject Child turns 18.[FN5]

Moreover, the timing in which Ms. P filed these petitions - within months of the Appellate Division's decision cannot simply be coincidence - particularly when she testified that some of the purported visitation violations occurred in 2006 - more than a year before she had filed. Clearly, notwithstanding the Subject Child's right to have [*4]permanency in her life, Ms. P's own need for custody has compelled her to (1) appeal the 2005 Order; and (2) continue to litigate after the Appellate Division's Order; and (3) presumably plan to re-litigate custody of the Subject Child four years from now when the Subject Child is 12 if she does not succeed here.

Mr. A also does not appear to have the Subject Child's best interests at heart. First, he relocated the Subject Child almost 400 miles away from her original residence and approximately 1000 miles from her mother's current residence - in contravention of the Court order. Secondly, the evidence at trial demonstrated that he has failed to comply with his transportation obligations under the 2005 Order most notably since his move to Maine to ensure that the Subject Child has her Court-ordered visits with her mother.

Unfortunately, although both parties love the Subject Child, it is clear that neither parent will sincerely promote the Subject Child's relationship with the other. Indeed, the evidence shows that each through their inability to communicate and compromise has undermined the other's relationship with the Subject Child. Thus, it is this Court's sad conclusion that, although each parent has demonstrated the ability to care for, shelter, and nurture the Subject Child equally well, neither party has demonstrated an ability to foster and promote the relationship between the Subject Child and the other parent.

In addition, each party now has demonstrated a wanton disregard for the Court's authority Ms. P in 2003 by relocating the Subject Child to Maryland without notice to or consent by Mr. A when there was already an order of joint custody (and decision-making) and visitation between the parties and now Mr. A in 2007 by relocating the Subject Child to Maine contrary to this Court's 2007 Interim Order and without notice to or consent by Ms. P.

With respect to credible testimony, the Court found the Subject Child and Sean P to be quite credible. On the other hand, with respect to many of the material facts, each of the parties was only marginally credible. Each party's version of events was clearly colored by each's own self interest - and motives - each purporting to act in the best interests of the Subject Child but each of whom clearly often was not.

Indeed, each party has demonstrated improper motives that is, without consideration of the best interests of the Subject Child with respect to the litigation and matters herein. First, as noted above, Ms. P's propensity for litigation to reclaim custody of the Subject Child appears to know no time limits (as evidenced by her comment to the Subject Child about "choosing" when the Subject Child "turns 12") or respect the Subject Child's right to permanency.

Second, Ms. P's own testimony evidences her inability to make appropriate parental judgments when it relates to Mr. A' s decision-making or his role as sole legal custodian. For example, Mrs. P has secured a dentist and pediatrician for the Subject Child in Pennsylvania irrespective of the fact that Mr. A has sole custody and is the only parent who should be making medical/dental decisions for the Subject Child.

In addition, as noted earlier, Ms. P compromised the Subject Child's right to have stability in her life by telling her that she could choose with whom she wants to live when she turns twelve. Moreover, she admitted that she readily conspired with her daughter to keep information from her daughter's father to wit, Ms. P agreed to obtain [*5]a bra for her eight year old daughter and not tell Mr. A about it - even though she admitted that developmentally "[the Subject Child] does not need one yet" [Feb.5 Tr. p. 64] because "S does not want her father to know that we talk about things like that because she said it would make him mad." [Feb. 5 Tr. p. 65]. Ms. P noted that "I didn't want her to get in trouble because she told me that Mr. A would not allow her to wear a bra and that he would get mad at the fact that she wears one when she's with me." [Feb. 5 Tr. p. 64.]

Irrespective of whether the Subject Child should or should not wear a bra, Mr. A is the sole legal custodian entitled to make a decision on that matter. Rather than respect Mr. A' position as sole legal guardian on this matter, Ms. P chose to encourage her daughter to defy Mr. A' wishes on the issue and promote keeping secrets from Mr. A. Such behavior manifests contempt for Mr. Adams' decision-making authority and evidences Ms. P's need to "win" the Subject Child's affections away from Mr. A.

Mr. A also appears before this Court with "unclean hands." First, his belligerent behavior towards Ms. P and her husband - often in the presence or earshot of his daughter - undercuts any contention that he promotes a positive relationship between his daughter and her mother or her family. His comments to Ms. P "shut up, shut up bitch" [Feb. 4 Tr. p.116] during his pick up of the Subject Child at Ms. P's home when the police already were present at Mr. A request were wholly inappropriate and ignited an already hostile environment leading to words between Mr. P and Mr. A with Mr. P responding to Mr. A' words by "call[ing] him bitch at that time." [Feb. 4 Tr. p. 116.]

Mr. Adams inability to appropriately interact with Ms. P and her husband has not only jeopardized the loving and nurturing relationship between the Subject Child and her step-father - as credibly testified to by Mr. P - it also demonstrates Mr. A poor parental judgment with respect to serving as a role model and placing his own needs above the needs of his daughter. Mr. P credibly testified that his relationship with the Subject Child is strained because the Subject Child is afraid that Mr. A will be upset about it. Specifically, Mr. P stated that he doesn't call the Subject Child when she is at her father's home because "[the Subject Child] will be in trouble . . . she used to always tell me I can't speak to you because my dad . . . my dad will be angry." [Feb. 4 Tr. at 129] Mr. A actions with respect to Mr. P have served only to promote guilt and a feeling of disloyalty in the Subject Child for having or wanting to have a relationship with her step-father.

The Court also takes note of Mr. Adams' letters to Ms. P that he also apparently sent to the Court all of which were differently dated but apparently mailed on the same day and received all at one time. [Feb. 4 Tr. p. 31] The evidence shows that the letters are wholly self-serving and unworthy of Court attention except as a frame of reference as to Mr. A' credibility and motives.

Finally, the evidence at trial demonstrated Mr. A clear contempt of this Court's May 2007 Interim Order which expressly forbade his relocation of the Subject Child to reside in Maine prior to any hearing on the matter. The consequences of this contempt finding as to Mr. A will be addressed further herein.

Thus, this Court is in the unenviable position of again hearing testimony from two squabbling parents whose credibility and motives are each quite suspect and who each accuse the other of violating the terms of the 2005 Order and each of whom has [*6]demonstrated a propensity to ignore this Court's orders if such orders do not suit him/her. Both parties have evidenced an inability to promote the other's relationship with the Subject Child and each believes that the Subject Child should reside with him/her and not the other parent.

What to do? Since the Court can't split the child in half [FN6] nor is it terminating either parent's parental rights, in essence, this Court must choose "the lesser of two evils" in terms of a primary custodial parent and issue an order that, in theory, if not in practice (that lies in the hands of the parties) promotes the best interests of the Subject Child.

Accordingly, for the reasons articulated above and as set forth below, the Court cautiously continues the existing custody arrangement of sole legal and physical custody of the Subject Child to Mr. A with liberal visitation to Ms. P as set forth further under the specific terms and conditions set forth herein.

As an initial matter, while the best interests of the child is the primary consideration in a child custody proceeding, a modification of an existing custody arrangement should be allowed only upon a sufficient showing of a change in circumstances warranting a real need for a change in order to insure the continued best interests of the child. See McCauliffe v. Peace, 176 AD2d 382, 383 (App. Div. 3rd Dept. 1991); Meola v. Meola, 301 AD2d 1020. Moreover, "priority, in the first instance, will be accorded an existing custodial arrangement," with the weight accorded to such arrangement dependent upon "whether the prior disposition resulted from a full hearing or a stipulation." See Maher v. Maher, 1 AD3d 987 (App. Div. 4th Dept. 2003) citing Friederwitzer v. Friederwitzer, 55 NY2d 89.

Here, after several years of "failed" stipulated orders of joint legal custody and shared physical custody, the Court had a full hearing on this issue of custody which resulted in the 2005 Order. Thus, the Subject Child's right to stability and permanency with the same parent after a full hearing on the issue which withstood appeal should only be undermined if the "totality of the circumstances warrants a change that is in the best interests of the Subject Child." Matter of Salvati v. Salvati, 221 AD2d 541 (citations omitted).

Accordingly, although Mr. A relocation to Maine does constitute a change of circumstance, Ms. P has failed to establish that a change in custody to her at this time will ensure the Subject Child's best interests. Indeed, history has now shown that neither party can be relied upon to promote the other's relationship with the Subject Child. The 2005 Order is replete with instances this Court found as credible evidence that Ms. P had blocked Mr. A access to the Subject Child and had sought to undermine the relationship between the two. The evidence at this trial, as noted earlier, also demonstrates Ms. P's continued contempt for Mr. A role as sole legal custodian. [*7]

With respect to her access to the Subject Child, in this current proceeding, Ms. P testified to only a handful of instances in a period of almost three years in which Mr. A intentionally interfered with her access to the Subject Child. Ms. P noted that there were two instances in 2006 and "three or four" in 2007 in which her visitation to the Subject Child was at issue. [Feb. 5 Tr. pp. 4-7. ] In most of those instances, although Ms. P did not have the visitation she sought with the Subject Child, she did have access to the Child, though less than that to which she was entitled pursuant to the 2005 Order. Moreover, although Ms. P doesn't speak to the Subject Child over the telephone as often as she would like or as often as she should be able to under the 2005 Order, she did admit that she speaks to her at least once or twice out of every five or six calls.

More importantly, Ms. P admitted that Mr. A has frequently given her additional visitation with the Subject Child - over and above that which is provided in the Court order. Although Ms. P testified that Mr. A only gives her additional time with the Subject Child when it suits his schedule; for example, when he went overseas on an extended business trip, she did admit she has more time with the Subject Child than the 2005 Order provides. Irrespective of Mr. A reasons for allowing the visits, the evidence shows that Ms. P was afforded additional time with the Subject Child, albeit at Mr. A convenience.

The Court does find credible Ms. P's testimony that she has been unable to participate in her daughter's educational planning as Mr. A has legal custody and the teachers at the school in Maine would not speak to her about her daughter. Nonetheless, the evidence at trial makes it quite clear that Ms. P's violation petitions, even though some violations were established, would not, in and of themselves, rise to a level of a change of custody or even a change in the terms of visitation.

The Court now turns to the issue of the Subject Child's relocation to Maine. Where a custodial parent seeks to change his residence in a manner that would detrimentally affect the other parent's ability to enjoy frequent and regular contact with the child, the relocating party bears the burden of establishing that the proposed move is nevertheless in the best interests of the child. Tropea v. Tropea, 87 NY2d 727. Among the factors to be considered are: Each parent's reasons for seeking or opposing the move; the quality of the relationship the child has with each of the parents; the expected impact of the move on the relationship the child would have with each of the parents; 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 child through suitable visitation arrangements. Id.

With respect to each party's reasons for seeking or opposing the move, the credible testimony established that Mr. A reasons for relocating are that his girlfriend Katherine resides there, he is starting up a business there, it's a "comfortable healthy environment" for himself and the Subject Child, and there is no racism there as opposed to the racism he experienced in Yonkers. "It doesn't go on in New Hampshire . . . Maine." [Feb. 14 Tr. pp. 9-10]. In addition, Mr. Adams testified that he had concerns about some of the kids with whom the Subject Child might associate with that it's "not a good environment for my daughter to be raised . . ." [Feb. 14 Tr. p. 9].Although the Court finds Mr. A testimony regarding his reasons for relocating [*8]credible, he did not carry his burden of proving that a relocation to Maine is in the best interests of the Subject Child. Indeed, much of his testimony compared the Subject Child's living experience in Maine with that of her experience in Yonkers, not Mamaroneck which is where he and she had been residing for a period of time prior to relocating to Maine. [FN7] Although Mr. A may have a case for relocating the Subject Child to Mamaroneck from Yonkers, he did not carry his burden with respect to relocating to Maine from Mamaroneck.

With respect to Ms. P's reasons for opposing the move, many of her "reasons" opposing the move seem to be, in reality, mere "window dressing" for her real motive, to wit, to obtain custody of the Subject Child, irrespective of where the Subject Child resides. When questioned by the Law Guardian as to what specific changes had occurred [since June 05] that caused Ms. P to now say that custody should be changed" [Feb. 5. Tr. p. 4], Ms. P's initial answer was, "Well, I've always felt that way." [Feb. 5. Tr. p. 4] Ms. P's own testimony indicates that Mr. Adams' move to Maine was simply fodder for a new custody petition.

Ms. P expressed concern about the number of registered sex offenders in Maine and the lack of significant racial diversity in the father's neighborhood in Maine. Notably, no such arguments were made by Ms. P about the Subject Child's residence in Yonkers- the Subject Child's primary residence since the 2005 Order - or Mamaroneck (her immediate residence prior to Maine).

Moreover, Ms. P primarily compared the demographics of Maine with that of Pennsylvania, the current residence of Ms. P, to wit, comparing sex offender statistics between Maine and her home in Pennsylvania; and comparing the racial demography between the two places.

Ms. P's concerns about the Subject Child's school in Maine also seem a bit dubious in that she testified that initially she had great difficulty in obtaining information from the Subject Child's school in Mamaroneck - much like the difficulty she was encountering with the school in Maine. [Feb. 5 Tr. pp. 9-11] Her concerns seem based more on the issue of access to her child's educational information as opposed to the school itself.

Given that Ms. P has lived in several different places during the life of the Subject Child - from Yonkers to a couple of different locations in Maryland and now to Pennsylvania, and Mr. A has had at least three residences Yonkers, Mamaroneck and Maine in the past few years, the "relocation" issue seems to be, in large measure, a red herring. In fact, it is undisputed that for most of the life of the Subject Child, the parties have had to travel a significant distance to exchange the Subject Child for visits. That situation was created by the mother when she initially left Yonkers for Maryland (with the Subject Child) numerous years ago. It is also undisputed that such distance precludes daily contact - except via telephone or internet - between the noncustodial parent and the Subject Child.

Thus, as most of each party's "motives" as to opposing or supporting the [*9]relocation are suspect at best (it appears Ms. P opposes, in large part, as a basis to seek custody, and Mr. A supports relocation for what appears to be his best interests, not necessarily the Subject Child's), the most critical factors the Court must consider in the relocation petition are: (1) the impact of the move on the Subject Child's relationship with her mother and (2) the ability of the mother to maintain contact with the Subject Child on a regular and frequent basis or through alternate visitation arrangements. Indeed, in light of the frequency of moves by each of the parties over these past few years, where the Subject Child resides is not really as important as how feasible it is for her mother to have the same or comparable contact with her as Mrs. P and the Subject Child previously enjoyed.

The 2005 Order divides the transportation obligation equally between the parties with one parent obligated to pick up the Subject Child to commence visits and the other parent to pick her up to end the visit. [2005 Order, p. 15.] According to the testimony, each of the parties drove or used public transportation to effectuate the exchange. [Feb. 4 Tr. pp. 67-68] The travel between the parties' residences already was significant - a 3 to 5 hour drive (one way) depending upon the traffic. It is not disputed that ground travel from Pennsylvania to Maine for a round trip weekend visit as set forth in the 2005 Order simply is too time consuming and onerous for the Subject Child and the parties. Thus, air travel is the only feasible means of transportation.

Accordingly, the key factor that must be weighed with respect to the issue of the relocation is whether given the additional travel distance and the added cost of air travel the mother will still be able to enjoy the same or comparable contact and access to the Subject Child that she previously has enjoyed. On this issue, the evidence is clear that neither party has the financial means to ensure that the Subject Child has all of her scheduled visits with her mother. Ms. P already testified that she could not afford to pay for the Subject Child's airfare for each visit the Subject Child is entitled to have with her. [Feb. 5 Tr. pp. 57-60] Mr. A testimony about his finances was simply too vague and evasive to be credible. [Feb. 14 Tr. pp. 54-59; 72-74; 81-84; 121-125] What is clear, however, is that he has no set income, he has no certain employment (he purports to be a hair-cutter as well as an entrepreneur with some sort of start up business selling goods but refused to testify as to where he had such goods or any specifics about his purported business) [Feb. 14 Tr. pp. 54-59; 72-74; 81-84; 121-125]; and, according to the writ of habeas corpus that he filed with this court early in the proceedings, he couldn't even afford to travel by car to Pennsylvania from New York to pick up the Subject Child at the completion of one of her visits before he moved to Maine.

Notably, while this matter was pending, the parties arranged for the Subject Child to travel by airplane as an "unescorted child" from the airport near each parties' residence as apparently the airfare was too costly for either party to afford to pay for two airline tickets to allow for parental escort. Indeed, Ms. P testified that she was not receiving her scheduled visits due to finances even while the matter was pending. Thus, there is no evidence whatsoever that Ms. P would have her scheduled visits should the relocation be approved and there is significant evidence that she would not - if for no other reason than the cost.

Alternate visitation arrangements simply are not feasible as the mother credibly [*10]testified that her telephone access to the Subject Child already is limited because the father does not ensure that daily phone calls take place and the Subject Child's school schedule restricts a schedule of fewer, but more extended, visits. And, the financial issue - even if fewer, more extended visits (i.e., entire summer and school holidays) were ordered - still looms. The evidence indicates that Mr. A financial circumstances are not stable or set and it appears that he simply would not pay or be able to pay his portion of the Subject Child's airline transportation for visits with her mother.

The Court notes that the Law Guardian appears to support Mr. A relocation petition urging that the relocation is in the Subject Child's best interests because the new distance between the parents' homes mandates air travel for the Subject Child, the cost of which now precludes the parties from being present during the transfer of the Subject Child from one parent to the other.

The Court is wholly persuaded by the evidence that it is entirely in the Subject Child's best interests for the parties not to be in each other's presence during the transfers of the Child for visits and back. Both the evidence presented in the 2005 proceeding upon which the 2005 Order is based and the evidence in this proceeding makes it abundantly clear that police involvement, acrimonious behavior between the parties and stress upon the Subject Child will be eliminated or minimized if the transfers of the Subject Child occur without both parties being present. Nonetheless, the fact that the transfers of the Subject Child have been fraught with inappropriate behavior by each of the parties (failure to comply with the terms of the Court order, escalating the scene by police involvement, denigrating the other party or her spouse or family member, etc.), does not justify a relocation to a residence resulting in a distance significantly farther than that which already had existed between their residences when the parties litigated the issue of custody in 2005.

The problem of inappropriate behavior and the acrimony at the exchanges of the Subject Child between the parents should be able to be remedied short of permitting a relocation of the Subject Child to a distant state for only that reason. See Eschbach v. Eschbach, 56 NY2d 167, 172,174 (courts must consider the "totality of the circumstances" and the existence or absence of any one fact cannot be determinative); see also Friederwitzer, 55 NY2d at 94.

As set forth further herein, this Court will fashion such a remedy so that appropriate transfers should occur that allow the Subject Child to be stress-free during exchanges between the two parents. Thus, though the Law Guardian's concerns are compelling, his proposed remedy (authorizing the relocation) to fix that problem cannot be sustained for only that basis. See Salerno v. Salerno, 273 AD2d 818, 819 (courts not required to adopt the recommendations of a law guardian); see also Eschbach, 56 NY2d at 174 (one fact cannot be determinative).

The Court notes that, in addition to the negative effect the relocation to Maine will have and has had on the mother's access to the Subject Child, Mr. A did not carry his burden of proof of showing that the Subject Child's life would be economically, emotionally and educationally enhanced by the move. Thus, it is on all these bases that this Court must deny Mr. A relocation petition and direct that - in order for Mr. A to continue to enjoy sole custody of the Subject Child - he must relocate the Subject Child back to this jurisdiction by the end of January 2009. [*11]

The Court notes that it is providing such ample time for the Subject Child's move back to New York only to ensure that the Subject Child completes this portion of the school year in the same school setting. The fact that the relocation of the Subject Child back to New York is not immediate does not minimize this Court's concern about adherence to its Order. Both parties previously have demonstrated a willingness to ignore the Court's directives when such directives did not suit her/him. Should Mr. A not relocate the Subject Child back to this jurisdiction, upon application and opportunity to be heard, the Court will consider numerous remedies including a change of physical custody, or punitive measures including incarceration for contempt of court. With respect to the issue of safe transfers for the Subject Child, the Court orders that any exchange of the Subject Child when both parties are present, will require the presence of a Court approved agency to supervise the exchanges - in whatever state or states the exchanges occur (when both parents are present). The cost for the agency to supervise the exchanges will be shared equally by the parties except as set forth further herein.

The Court will continue the Law Guardian's appointment on this matter through May 2009 so that the Law Guardian may report to the Court that its directives with respect to the Subject Child and the supervised exchanges as set forth in this Order are adhered to by the parties.

Turning to this issue of this Court's determination of whether Mr. A committed civil contempt of this Court's 2007 Interim Order, a noted earlier herein, for the reasons set forth below, this Court finds Mr. A in contempt of that Order.

"To sustain a finding of civil contempt based upon a violation of a court order, it is necessary to establish that a lawful court order clearly expressing an unequivocal mandate was in effect and that the person alleged to have violated that order had actual knowledge of its terms." Graham v. Graham, 152 AD2d 653(1989)(citations omitted). The Court notes that Mr. A contention that Ms. P was aware of his impending relocation does not relieve him of his obligation to comply with a Court Order. As an initial matter, that contention was not credible. Moreover, Mr. A own testimony at trial evidences that his plan to relocate the Subject Child to Maine preceded his Court appearance in May 2007, that he failed to disclose the Subject Child's imminent planned relocation to the Court at that time, that he was present when the Court issued the May 2007 Interim Order (on the record and in writing) directing that the Subject Child continue to reside in New York until a hearing could be held [FN8], and he wholly failed to comply with the Court's order not to undertake such relocation until after a hearing on the matter.

In order to establish the contempt, it must also be demonstrated that the offending conduct "defeated, impaired, impeded or prejudiced" a right or remedy of the other party." Id.; Judiciary Law § 753[A].

Here, Ms. P credibly testified that her September 2007 visitation was not kept by [*12]Mr. A, and, since the Subject Child's move to Maine, she was unable to obtain all of her Court-ordered visits because of an inability of the parties or an unwillingness by Mr. A to pay airfare.

The penalty for civil contempt is limited to a "fine and imprisonment, or either" (Judiciary Law § 753[A]; Family Court Act § 156); see Labanowski v. Labanowski, 4 AD3d 690, 693 (App. Div. 3rd Dept. 2004). Accordingly, the Court finds that an appropriate remedy for Mr. A contempt of the May 2007 Interim Order is financial remuneration. Thus, for six months after the Subject Child is relocated back to New York, Mr. A will be financially obligated to pay the entire cost of an approved supervising agency (wherever the exchanges occur both in New York and Pennsylvania) to be present for each exchange of the Subject Child in which both parents are present.

This Court finds that for all of the reasons articulated above, and upon consideration of all the credible testimony and evidence, Ms. P failed to sustain her burden of proof with respect to her modification of custody petition; sustained her burden with respect to the violation petitions; that Mr. A failed to sustain his burden of proof as to his relocation and violation petitions, and, upon consideration of all of the factors with respect to the Subject Child's best interests, orders the following:

IT IS HEREBY ORDERED that any and all prior Orders concerning custody and/or visitation with the Subject Child are hereby superceded by this Order; and it is further

ORDERED that S. A. shall retain sole legal and physical custody of the Subject Child on the condition that he return the Subject Child to reside within the jurisdiction of New York (at a location within a comparable distance to the mother's location as had previously existed) no later than February 1, 2009; and it is further

ORDERED that Kenneth Bunting, Esq., Attorney for the Child, shall remain assigned to the matter for a period of six months to ensure that the Subject Child returns to reside within the Court's jurisdiction and that a Court approved supervising agency is utilized by the parties whenever both parties are present (meaning at or in the near vicinity) during the exchange; and it is further

ORDERED that if the parties' cannot agree on a supervising agency or agencies, the Law Guardian shall select such agency (or agencies) and inform counsel for the parties of such selection in writing with copies to the Court; and it is further

ORDERED that Mr. A shall bear sole financial responsibility for the cost of the supervising agency for the exchanges for the first six months of such exchanges and, thereafter, Mr. A and Ms. P shall share the cost of the supervising agency equally; and it is further

ORDERED that Joyce P shall have visitation with the Subject Child every extended weekend (a weekend in which the Monday immediately following the weekend is a holiday) during the year from Friday 7:00 p.m. to Monday at 12:00 p.m. ; and it is further

ORDERED that, in addition to the above-mentioned visits, Joyce P shall also have visitation with the Subject Child the third weekend of every month from Friday 7:00 p.m. to Sunday at 12:00 p.m. If an extended weekend falls on the third weekend of the month, Ms. P will have her weekend visitation with the Subject Child on the weekend immediately following. This visitation schedule is to commence effective June 24, [*13]2005; and it is further

ORDERED that, in addition to the weekend visits, in odd numbered years, Ms. P shall have visitation with the Subject Child on Thanksgiving Day beginning the Wednesday at 7:00 p.m. immediately preceding Thanksgiving through the following Sunday at 12:00 p.m.; at 7:00p.m. on the day which begins the Subject Child's December school vacation through Christmas Day at 12:00 noon, and Easter from the Friday at 7:00 p.m. immediately prior to Easter Sunday through Easter Sunday at 12:00 p.m. noon, unless the Subject Child has school vacation either immediately prior to Easter or immediately following Easter then Ms. P will have visitation with the Subject Child beginning at 7:00 p.m on the Friday of the last day prior to the vacation until 12:00 p.m. noon of the day immediately preceding school recommencing; and it is further

ORDERED that, in even numbered years Ms. P shall have visitation with the Subject Child on Christmas Day at 12 noon through the Sunday at 7:00 p.m. ending the Subject Child's vacation during that time; and it is further

ORDERED that Ms. P shall have five weeks of visitation with the Subject Child during the summer from July 1 -21 and then August 1 through August 14 of each year and such visitation shall supercede any regularly scheduled visitation with pick up to be at 7:00 p.m. of the start of the visitation and drop off at 12:00 p.m.; and it is further

ORDERED that every Mother's Day weekend shall be spent by the Subject Child with Ms. P and every Father's Day weekend shall be spent by the Subject Child with Mr. A irrespective of any other scheduled vacation; and it is further

ORDERED that in even years Ms. P will spend any spring school vacation with the Subject Child to the extent that such vacation does not coincide with any Easter school break with such visitation to commence at 7:00 p.m of the Friday immediately prior to the vacation through the Sunday at 12:00 p.m. that immediately precedes school recommencing; and it is further

ORDERED that Ms. P shall have any such further visitation to which the parties may agree; and it is further

ORDERED that each parent is entitled to one telephone call per day with the Subject Child and the party who has the Subject Child with him/her shall ensure that the other party shall have such telephone contact, to wit, if the party without the Subject Child has not had telephone contact with the Subject Child by 8:00 p.m., the parent with whom the Subject Child is with shall ensure that a call is made by the Subject Child to the other parent; and it is further

ORDERED that the pick up and the drop off of the Subject Child for these visitations shall alternate between the mother and the father, with the mother being responsible for having the Subject Child transported to commence visits and the father being responsible for having the Subject Child transported to end the visits; and it is further

ORDERED that Mr. A shall immediately provide in writing to Ms. P the names and telephone numbers of school officials/teachers and medical providers (no later than seven days of receipt of this Order) and, in the future, on or before September 30 of each year and any time thereafter if and when such information changes between one year and the next; and it is further

ORDERED that counsel for Ms. P shall create and provide to counsel for Mr. A [*14]any and all releases necessary to ensure access of such information to Ms. P and counsel for Mr. A shall report to the Law Guardian no later than 30 days of receipt of this Order that such releases were executed by Mr. A; and it is further

ORDERED that no party shall disparage the other in the presence of the Subject Children nor allow any third party to do so. and it is further

ORDERED that the Subject Child is not leave the United States without prior written permission by the other parent or Court order.

DATED: November 20, 2008

Yonkers, New York

ENTERED:

___________________________

Colleen D. Duffy

FAMILY COURT JUDGE

DISTRIBUTION:

Footnotes

Footnote 1: On December 26, 2006, the Appellate Division affirmed the 2005 Order of this Court, with costs, which granted sole legal and physical custody of the Subject Child to S. A., father of the Subject Child, with liberal unsupervised visitation by J. P., the Subject Child's mother.

Footnote 2: Indeed, in the past, Ms. P even sought relief in a court outside New York. On January 21, 2004, Ms. P filed a petition in the Circuit Court for Baltimore County, Maryland (the "Maryland petition") seeking modification of the August 2003 Order of this Court to obtain physical custody of the Subject Child. At the behest of this Court and the Law Guardian, Ms. P later withdrew the Maryland petition.

Footnote 3: The May 18, 2007 interim order was to stay in effect until the Court could hear and rule on a relocation petition which at that time had not yet been filed by Mr. A.

Footnote 4: Of course, they may continue to litigate issues about child support until she turns 21.

Footnote 5: As discussed later in this Decision and Order, such a statement by Ms. P to her daughter evinces poor parental judgment - placing her own need to have her child live with her above the needs of the Subject Child to have a stable residence and to have an assurance of future stablility. Ms. P's comments were not only legally erroneous, they also had the potential effect of (1) thrusting an unwanted responsibility on the child (having to choose), and (2) throwing the child into an emotional maelstrom worrying about where she would reside in the future.

Footnote 6:Indeed, "splitting the child" already had been tried and failed in this case. Notably, a prior order of this Court, entered July 28, 2004 and in effect as of July 2003, when the Subject Child was pre-school age, awarded each party joint custody with each parent having custody of the Subject Child for a two week period and then switching off. That arrangement not only proved unworkable because the Subject Child was approaching school-age, but also because the exchanges of the Subject Child by the parties were fraught with arguments and police-involvement.

Footnote 7: The Subject Child was enrolled in school in Mamaroneck, not Yonkers, immediately before she was moved to Maine.

Footnote 8: At the time of the May 2007 court appearance, Mr. A had not even filed a petition to relocate. The Court directed that, if he was planning - in the future - to relocate the Subject Child, he needed to file a petition if Ms. P did not consent. Thereafter, in or about July 2007 Mr. A filed his petition. His trial testimony evidences that he already had relocated the Subject Child to Maine by the time he had filed his petition.