M.H. v M.M.

[*1] M.H. v M.M. 2009 NY Slip Op 51438(U) [24 Misc 3d 1213(A)] Decided on July 1, 2009 Family Court, St. Lawrence County Potter, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 1, 2009
Family Court, St. Lawrence County

M.H., Petitioner

against

M.M., Respondent



V-01994-04/09D



Petitioner:

Renée Albaugh, Esq.

Respondent:

Robert Ballan, Esq.

Law Guardian:

Diane Exoo, Esq.

Barbara R. Potter, J.

This matter comes before the Court by a pro se modification petition filed January 20, 2009, by Petitioner, M.H.. Her modification petition also alleges Respondent, M.M., violated this Court's prior order dated July 27, 2007. Petitioner, however, failed to request that Respondent be held in contempt of court for violating the order, and Respondent was not advised of his possible incarceration for six (6) months for violating the order (see Judiciary Law § 756). The only relief Petitioner requested was the transfer of C.M.'s (born January 18, 1998) placement from Respondent to her because Respondent intends to relocate to Thailand with their son. She did not suggest any parenting time for Respondent. Respondent interposed an answer and cross-petition filed March 19, 2009. He cross-petitioned for permission to relocate to Thailand. He suggested Petitioner be granted only supervised visits with their son. He asserted, as an affirmative defense, that Petitioner's petition was defective regarding the alleged contempt because it omitted the requisite notices, and he requested it be dismissed. The Court agrees. Its decision will be limited to whether Petitioner should be awarded primary physical custody or whether Respondent should be permitted to relocate to Thailand with the parties' son.

The trial in this matter commenced June 4, 2009, and continued June 11, June 17, and [*2]June 18, 2009.[FN1] The parties were present at all times during trial, the Petitioner with her counsel, Renée Albaugh, Esq., Respondent with his counsel, Robert Ballan, Esq. The child was also represented at all times by his law guardian, Diane Exoo, Esq.. The Court held a Lincoln Hearing with the child on June 30, 2009.

These parties have a long history with this Court. Each parent is seeking to modify the Court's current order dated July 27, 2007. It modified the parties' order of this Court dated August 30, 2005. The Court's first order of August 30, 2005, was entered after trial. The Appellate Division, Third Division, affirmed (see Hissam v Mancini, 41 AD3d 955, leave denied 9 NY3d 809). The current order grants Respondent legal and primary physical custody of the parties' son. Petitioner is granted a schedule of parenting time. After a hearing during these proceedings, as indicated above, her schedule of parenting time was amended to supervised visits only. After the current order was entered, Respondent filed a violation petition against Petitioner on March 13, 2008. Based upon Petitioner's consent [FN2], on June 25, 2008, the Court entered a finding of contempt of court against her and sentenced her to fifteen (15) days' incarceration. Her sentence was suspended for one (1) year on the condition she follow the current order.

Since the inception of the parties' proceedings in this Court in September 2004, Respondent has resided in the State of Pennsylvania, and Petitioner has resided in the State of New York. When a parent seeks to relocate with a child, he or she must show by a preponderance of the evidence that it is in the child's best interests(see Hills v Madrid, 2008 NY Slip Op LEXIS 9565 [3d Dep't 2008]; Tropea v Tropea,87 NY2d 727). The factors the Court must consider include (1) each parent's reasons for seeking or opposing the move; (2) the quality of the relationship between the child and the parents, (3) the impact of the move on the child's future contact with the noncustodial parent, (4) the degree to which the child's life will be enhanced economically, emotionally and educationally by the move, (5) the feasibility of preserving the relationship between the noncustodial parent and the child through parenting time, (6) each parent's ability to provide intellectual and emotional development of the children and, (7) the stability that both parents are able to provide the children. Frankly, the Court is struck by the paucity of evidence provided by either party as to the issue of relocation, the father's reasons for seeking the relocation, or the mother's reason for opposing the move. However, as stated previously, this Court does not operate in a vacuum, and these parties have a long history with this Court. The Court has taken judicial notice of its previous orders (Matter of Anjoulic, 18 AD3d 984 [3d Dep't 2005]). It is also fair to say, that although no one provided specific evidence with regard to the distance from the mother's residence in Northern New York to the proposed relocation of the child to Thailand, the Court can take judicial notice, or infer, that regular in-person visitation would be impossible, [*3]particularly based upon the parties' financial circumstances of which the Court is also aware.

In deciding the various factors, the Court has considered the testimony of: Petitioner; Respondent; Petitioner's father,; and Elizabeth C., the director of Human Resources at Sanofi Pasteur, Respondent's employer. The Court considered not only their testimony, but its observations of the parties during trial, the parties' exhibits introduced into evidence, and the closing arguments of counsel, as well as the wishes of the child. The exhibits considered include: the emails exchanged between the parties (Respondent's Exhibit A and B); the child's certified psychological record from Dr. M. Garcia-Jones, Psy.D., (Respondent's Exhibit A from the May 7, 2009, hearing); the child's Pennsylvania's Department of Education's System of School Assessment (PSSA) (Law Guardian's Exhibit 1); emails from Respondent to his attorney and between the parties (Respondent's Exhibit G); the child's school progress report (Respondent's Exhibit K); Attestation from Sanofi Pasteur (Respondent's Exhibit J).

Petitioner testified at the hearing of May 7, 2009, and during the trial. Her testimony from the May 7 hearing was incorporated into the trial. Most of her testimony was related to her allegations regarding Respondent's contemptuous conduct. According to her testimony, there were many visits, including April 25, October 10, and November 7, 2008, where Respondent failed to take C.M. to the appointed place and time for the exchange. Prior to October 2008, Respondent had informed Petitioner he would be approximately one (1) hour late for the exchange because his work schedule had changed and he could no longer be there by 7:00 pm. The Court finds that many of these missed visits were due in part to Respondent's unilateral decision to alter the parenting time without seeking the Court's intervention. Notwithstanding Respondent's unilateral action,

after October 2008 on more than one occasion, Petitioner arrived at the exchange point at the court-ordered time, but left without seeing C.M. even though had she waited, Respondent and C.M. did arrive, albeit later than the court-ordered time, but consistent with Respondent's notice to her. The father testified as to C.M.'s demeanor at the October 8, 2008, scene at the exchange place [FN3] when they arrived and found that his mother had already come and left without him. C.M. "cried a little" and said "I knew it."Further, Petitioner's conduct in going to the exchange point at the court-appointed time, knowing Respondent would not be there until later, and then leaving before Respondent and C.M. arrived, shows her willingness to forego her visits with C.M., as well as C.M.'s visits with his three (3) younger siblings, by claiming to be the victim and pleading to the Court that Respondent be made to "respect" the Court order. Respondent should not have acted unilaterally, although he testified that he though as adult parents they could work the time differential out without the further necessity of paying lawyers and involving the Court. While in many cases that is, and should be, true, it is not the case here and Respondent should have once again sought intervention of the court to change the exchange time from 7 pm to 8 pm. Respondent did not take C.M. to the exchange place for Petitioner's April 25, 2008, visit because [*4]prior to that visit Respondent had filed a petition alleging Respondent's violation of the order because she kept C.M. after a visit and tried to enroll him in a local school. The Court signed an order to show cause with an ordered paragraph stating "Respondent . . . shall without precondition, be entitled to immediate physical custody of [C.M.]." The Court finds Respondent's conduct to have been misguided; it does not, however, rise to the level of warranting a change in C.M's placement. Further, the father testified that after he became aware of his misinterpretation of the Court's order to show cause, he offered Petitioner make-up visits on May 16-18, 2008, and May 30-June 2, 2008, and she never responded to his offer.

While Petitioner's testimony failed to apprise the Court of her reasons for opposing C.M.'s move, it speak volumes of her relationship with Respondent and their child. Of course, the Court notes that a relocation to Thailand would impact significantly on the amount of time she can spend with her son. Although, since the Court granted Petitioner supervised visits only in May 7, 2009,[FN4] she has failed to avail herself of any opportunity to see C.M.. Instead, she would rather wallow in her vision of herself as a "victim". Respondent's testimony established that since the Court ordered supervised visits for Petitioner, he contacted different counties trying to locate a supervised visitation center for Petitioner's visits. He investigated ones in New York and found one in Scranton, Pennsylvania, but Petitioner/mother refused to agree to any supervisor for these visits. The father's actions demonstrate his willingness to encourage a relationship between C.M. and his mother, even if he and Petitioner cannot get along. The father is able to put C.M's needs ahead of his own, while the mother's actions highlight her need to be a "victim" and her unwillingness to put her son's desire to see her above her animosity for the father.

Respondent's testimony established that after gaining custody of C.M. in 2005 he engaged a therapist for him in 2006. C.M. was in therapy from January 2006 through February 2008. His psychiatric records (Respondent's Exhibit A) reveal much about the relationship of C.M. with his mother; his mother's and grandmother's denegration of his father when he is with them and the effect it has on him.The Court is taking judicial notice of a motion the law guardian made during this proceeding and its attachments. Ms. Exoo's motion requested, among other things, that Petitioner's communication with C.M.'s mental health providers be limited to contact through her attorney. Attached to the motion was a letter Petitioner sent to C.M.'s psychologist. It stated, "if verbal or written reports . . . are given . . . without my consent I will seek further action." The Court finds Petitioner actively sought to interfere with C.M.'s well-being. After significant progress C.M. did not see his therapist after February 25, 2008, but saw her in September 2008 after spending the summer with his mother. Petitioner testified that she miscarried a child with her current paramour on or about December 22, 2008. After C.M.'s visit in early January 2009, C.M. revealed to Respondent that [*5]Petitioner had shown him pictures of the dead fetus. C.M. described the fetus as purple and slimy. He was very "freaked out" about it. Respondent re-engaged C.M. in counseling. He again was upset not only because of the inappropriate pictures, but because, as he reported, his mother and grandmother were once again urging him to say that his father abuses him and that he wants to live with his mother. Respondent testified that on an occasion in February 2009 C.M. became very upset and called his mother a "faggot", "bitch', "whore", "slut", and "asshole" (words the father says he does not use around C.M.) and said "they never really stopped saying bad things about you." Respondent testified that, after these incidents, he did not permit C.M. to visit his mother in February. As a result of Petitioner's actions and C.M.'s reaction to his mother, the Court suspended her parenting time and granted her supervised visits. Testimony established Petitioner has not seen C.M. since January 2009, although she could have availed herself of setting up supervised visits.

Respondent seeks permission to relocate to Thailand because his current wife, and C.M.'s step-mother, was transferred there for an initial period of two (2) years for employment reasons. She is a laboratory manager for Sanofi Pasteur. She moved to Thailand in November 2008, and Respondent planned to move there in June 2009 after C.M. completed this school year. Initially, when he petitioned the Court for permission to relocate, he stated he had a position there as well. In fact, his testimony and that of Ms. C. established he was not being transferred by his current employer, Sanofi Pasteur, to Thailand. His explanation of his misunderstanding regarding his employment is questionable, though plausible. The fact is he will be unemployed if he moves to Thailand. However, he testified that he believes his wife is earning more than she did here based upon the economies of the nations (although he could not say how much she earns.) He testified regarding the home and schooling [FN5] proposed for C.M. and various avenues of interests and extracurricular activities available to C.M.. He testified that he has employable skills and expects to be employed soon, and he wishes to keep his current family intact. On the other hand, if he does not gain employment, he will have more time to spend with C.M.

C.M. wishes to move to Thailand with his father. Respondent and C.M. visited Thailand in May 2009 and C. M. saw their proposed residence and school. He wishes to have contact with his mother and siblings. The current evidence before the Court is that since C.M. has had no contact with his mother (other than telephonic contact), his concentration and behavior in school and his school grades have all improved (Law Guardian's Exhibit #1).

C.M. is eleven (11) years old (born January 18, 1998). The express wishes of the child are entitled to great weight where the child's age and maturity make his input particularly meaningful (see McGovern v McGovern, 2009 NY Slip Op 76 [3d Dep't 2009]; O'Connor v Dwyer, 18 AD3d 757 [2d Dep't 2005]; Eschbach v Eschbach, 56 NY2d 167 [1982]). The Court believes, after talking again with C.M., that he may be somewhat immature for his age. He loves both of his parents. However, he clearly [*6]seems to understand the impact upon him of his mother's and her parents' behaviors and these on-going court proceedings.

In this case, the Court finds that C.M.'s best interests are served by allowing him to move with his father to Thailand upon Respondent's posting a ten thousand dollars ($10,000.00) bond or five thousand dollars ($5,000.00) cash with the St. Lawrence County Family Court Chief Clerk. First, the Court credits the father's testimony of wanting to keep his current family intact. Second, the Court finds C.M.'s relationship with his father to be positive while his relationship with his mother is fraught with anxiety. Third, while a move to Thailand will impact the mother's future contact with C.M., by her own hand, she has had no face-to-face contact with him since May 2009. Fourth, the Court finds that a relocation to Thailand will enhance C.M.'s life educationally and emotionally. He will be exposed to a different culture which will enhance his life experience and education in innumerable ways. Fifth, C.M's relationship with his mother can be maintained; the father suggested using a webcam to permit the mother to continue her relationship with C.M.. Sixth, as previously discussed, the father provides for all of C.M.'s intellectual and emotional development, whereas the mother has interfered with his development in the past. For example, she attempted to enroll him in a local school making C.M. miss part of his schooling in Pennsylvania. Furthermore, she showed him inappropriate pictures that caused him to return to counseling after his therapist had discharged him. Seventh, the father has provided, and will continue to provide, a stable home for C.M.. He will help C.M. with his education and to make the transition to a foreign country. Petitioner is not able to provide C.M. with a stable home. At the time of the prior hearing, the mother resided with C.M., her then-husband (J.H.) and their two (2) children. Now, she and Mr. H. are separated and locked in a custody dispute over their three (3) children. Petitioner miscarried a baby with her current paramour who is, by court order, not allowed to have contact with her children, yet who continues to be her paramour and reside with her. The mother and her parents not only deny their responsibility for the emotional and psychological injury to C.M., they just do not get it. To leave C.M. in the custody of his mother would not only not serve his best interests, it would serve to destroy his best interests (see Samuel S v Dayawathis R, 2009 NY Slip Op 04431 [2d Dep't 2009]); Walrad v Walrad, 2009 NY Slip Op 4325 [3d Dep't 2009]).

The Court recognizes that a move to Thailand will severely restrict C.M.'s contact with his mother, but that may be a good thing. This mother and her parents, and their behaviors as concerns this child, are best described as toxic to C.M.. For example, during these proceedings Petitioner's parents have filed numerous petitions seeking custody of C.M. or seeking to have Respondent found in contempt of court. After the close of testimony in this proceeding, Petitioner's parents filed yet another custody petition. The mother and her family have waged a campaign to discredit the father, but in the process have discredited themselves. She engages in a campaign to alienate her children from the other parent. Every time she and the father of any of her children separate, there is a bitter custody dispute. First, she lost custody and received only supervised visits with C., her eldest child from a prior marriage. Then, she lost custody of C.M. in 2005 and lost the right to unsupervised contact in 2009. Presently, she and Mr. H. are fighting over custody of their three (3) children. The mother has exhibited a [*7]pattern of behavior wherein she does not put her children's needs ahead of her own. The mother will be granted limited contact with C.M. as set out in the Order based upon this Decision.

Dated: July 1, 2009

ENTER

Hon. Barbara R. Potter

Family Court Judge

TO:

Renee Albaugh, Esq.

St. Lawrence County Public Defender

48 Court Street

Canton, NY 13617

Robert Ballan, Esq.

Attorney at Law

11 Baldwin Avenue

Norwood, NY 13668-0234

Diane Exoo, Esq.

Attorney at Law

36 State Street

Canton, NY 13617 Footnotes

Footnote 1:Prior to commencing trial, the Court held a hearing May 7, 2009, to determine the issue of Petitioner's visits with her son. After that hearing, the Court decided it would be against C.M.'s best interests to have unsupervised contact with Petitioner.

Footnote 2:Petitioner consented to a finding that she did not return C.M. to the Respondent in Pennsylvania after his Christmas visit with her, but instead enrolled him in the school district in which she resides in New York State.

Footnote 3:The exchange place is a three to four (3—4) hour drive for both parties.

Footnote 4:Supervised visits were implemented after a January 2009 visit by C.M. at his mother's home when she showed him pictures of her newly-miscarried dead fetus telling him it was his little sister. The father testified at the May 7, 2009, hearing that upon C.M.'s return to his father's in January, C.M. had a "meltdown" saying he felt "weird" and returned to see his counselor. C.M. had been discharged from therapy some time before then.

Footnote 5:C.M. would be attending an international school in Thailand based upon the American school system.