Matter of V.Z. v K.Z.
Annotate this CaseDecided on August 7, 2009
Family Court, Suffolk County
In the Matter of a Proceeding for the Custody/Visitation of a Minor Under Article 6 of the Family Court Act V.Z., Petitioner,
against
K.Z., Respondent.
V-4536-99/08
Attorney for Petitioner
Linda Morrison, Esq.
350 Veterans Memorial Hwy
Commack, NY 11725
Attorney for Respondent
Kevin Gilvary, Esq.
1 Jackson Avenue
Hampton Bays, NY 11946
Attorney for Child
Mary Beth Daniels, Esq.
2 Roanoke Road
Sound Beach, NY 11725
Joan M. Genchi, J.
There are two petitions pending before the Court all brought on by way of Order to Show Cause. The first, filed December 24, 2008 was commenced by the petitioner/father, V. Z. (hereinafter referred to as "petitioner/father") seeking modification of the order of visitation set forth in the parties divorce decree. He seeks a schedule for his visitation. The second, filed June 12, 2009 was commenced by the respondent/mother, K. Z. (hereinafter referred to as "respondent/mother [*2]") seeking modification of the order such that all visitation be suspended. The hearing of this matter commenced July14, 2009 and continued July 15, 16, August 3, and 4, 2009. Petitioner called respondent to testify and he testified on his own behalf. Respondent testified on her own behalf. Child's attorney had her client appear for an in camera.
HISTORY OF THE CASE
Suffolk County Family Court issued an Order of Custody and Visitation on February
2, 2000 (G. Blass, F.C.J) wherein respondent/mother was granted custody of B. Z.,( DOB
01-02-1995, hereinafter referred to as "the child") and petitioner/father was granted visitation
pursuant to a schedule as set forth in the order.
In 2006 respondent/ mother filed for a divorce in Suffolk County, New York.
The petitioner/father and respondent/mother entered into a Stipulation of Settlement
(date and terms of which are unknown to this Court) and an Amended Stipulation of Settlement
which was duly executed by the parties on February 20, 2007 and February13, 2007. Said
Amended Stipulation of Settlement was intended to resolve all issues relative to the pending
Action for Divorce and provided, among other things, that respondent/mother shall have custody
of the child and petitioner/father shall have supervised visitation with the child as agreed to by
the parties, that respondent/mother was to provide petitioner/father with child's current address
and that neither party was to take the child out of the United States without the written
permission of the other party.
A Judgment of Divorce was granted (P. Sweeney, S.C.J.) on April 24, 2007 which
ordered among other things that the respondent/mother have custody of the child, that the
petitioner/father have visitation in accordance with the parties settlement agreement, that the
Amended Settlement Agreement survive and not merge into the Judgment of Divorce and that
the Supreme Court and the Family Court retain concurrent jurisdiction over the matters of
custody and visitation.
It is from this order that the parties seek relief.
FACTS
The parties were married on December 23, 1993 in Kosovo, Former Yugoslavia. (It
is noted by the Court that this was a time of political unrest, ethnic cleansing and war in this
region.) They left Kosovo shortly thereafter and went to Germany. They remained in Germany
for approximately six (6) months then, came to the United States. The parties were not yet U.S.
citizens. Petitioner/father did not speak English. Respondent/mother did speak English and had
been in the U.S. prior to this. The child was born on January 02, 1995 in Southampton Hospital
[*3]approximately one year after the parties arrived in the United
States.
The parties initially resided with respondent/mother's family in Quogue, NY then,
subsequently, they resided with respondent/mother's brother, A. T., 4 Cedar Street, Manorville,
NY Sometime in 1999 the parties moved to their own home in West Hampton Beach, NY In
November of 1999, respondent/mother separated from petitioner/father, taking the child with
her. She moved back to her brother's home in Manorville, NY Shortly thereafter (02-02-2000)
she obtained the aforementioned Order of Custody from the Suffolk County Family Court .
Respondent/mother and the child remained in the Manorville, NY home of her brother until
2004.
While respondent/mother's 2000 Family Court custody/visitation matter was
pending, petitioner /father visited the child with pick-up and drop-off occurring at a local
mosque. This took place several weekends. However, he did not like this arrangement and the
parties agreed that pick- up and drop-off would occur curbside at the corner of the child's
residence in Manorville, NY
The Family Court Order of Custody/Visitation granted February 2, 2000 ordered
visitation as follows: "alternate weekends from Sunday at 10:00AM to Monday at 6:00PM" and
"pick-up and drop-off to occur at the corner of 4 Cedar Street, Manorville." Visitation occurred
several times at the court ordered pick-up and drop-off location.
However, the petitioner/father objected to this arrangement because he was unhappy
that his brother-in-law and other members of respondent/mother's family failed to come out to
his car to say "hello" at the time of pick-up and drop-off. He viewed this as a sign of disrespect
to him. He also objected to what he viewed as the child being treated "like a dog" in that they
opened the door to the house and let the child walk alone to the road while he opened the car
door for the child so the child could get in. As a result, the petitioner/father voluntarily stopped
visitation in the year 2000. (The Court is aware that cultural differences may have impacted on
this case however, the Court firmly believes that petitioner/father had an obligation to put his
personal feelings aside and make every effort to visit his child.) Moreover, petitioner/father
failed to notify anyone that he would not be coming for visitation...he just did not show-up.
Thereafter, petitioner/father sent various members of a mosque in Westbury with
whom respondent/mother's family were acquainted to talk to respondent/mother's family to ask
them to "treat him in a good/nice way." These attempts by third parties were not satisfactory
from the petitioner/father's point of view. As a result, he chose not to exercise his visitation
rights. He testified that he "gave up because he owed money (child support) and was guilty
himself."
It is noted by the Court that respondent/mother did request consent from petitioner/
father allowing the child to travel outside the United States and to the credit of the
petitioner/father such consent was given to her by way of a notarized note dated May 23, 2003.
In 2004 respondent/mother and the child moved to the home of her sister, "L." and
brother-in-[*4]law, "A." in Center Moriches, NY They remained
there for approximately 9 months and then, they moved to a confidential address in
Southampton, NY where they still reside. Respondent/mother had utilized and maintained a P.O.
Box in Manorville for several years and continues to do so.
In the year 2007 respondent/mother's attorney at the time prepared the
aforementioned stipulation settling the parties divorce action. Respondent/father represented
himself. He went to petitioner/mother's attorney's office to sign the stipulation. Respondent
claims to have read the stipulation and to have spoken to " a Pakistani guy" whom he believed to
be respondent/mother's attorney at the respondent/mother's attorney's office before he signed the
agreement. He now claims that he did not understand that according to the stipulation his
visitation was to be supervised. In any event, he did not attempt to exercise any visitation rights
at that time.
On September 25 of 2008 petitioner/father filed an application in Suffolk County
Family Court to modify/enforce his visitation rights as set forth in the divorce decree. At or
about the same time Child Support Collection began the process of collecting arrears on behalf
of the respondent/mother and eventually brought on a petition against petitioner/father. As a
result of that petition the petitioner/father brought his child support arrears up to date. (
Approximately $23,000.00) Respondent/mother testified that she did not bring on any petition
for arrears herself because she "didn't want to see his face." The Court notes that
petitioner/father's license was also suspended at this time and he went to the Child Support
Collection Office to "sign some papers" to get it reinstated.
Petitioner/father's modification/enforcement petition relative to his visitation was on the
court calendar on November 24, 2008. The parties did conference with each other in the hallway
of the courthouse before going into the courtroom. Petitioner/father testified that an agreement
regarding visitation and the child support arrears had been reached between the parties and that
as a result of that presumed agreement, he withdrew his petition.
According to the testimony of the petitioner/father he believed the agreement to be
that he would get to see his child or else respondent/mother would return the $23,000.00 to him.
Respondent/mother was to give him her decision in two weeks. Petitioner/father supplied two
deposit slips so that respondent/mother could deposit the money into his account should she
decide to withhold visitation.
According to the testimony of the respondent/mother the petitioner/father stated to
her in the hallway of the courthouse, "If he doesn't want to see me then, I want my money back".
Respondent/mother testified that she made no agreement with the petitioner/father.
Two weeks later, petitioner/father telephoned respondent/mother who informed him
he was not getting his money back and he was not going to see his child.
Shortly thereafter, the instant petitions were filed.
FINDINGS AND DECISION
It is the finding of the Court that the petitioner/father paid his support arrears for the
purpose of getting his license reinstated. Although the petitioner/father testified that he "paid the
money so he would get visitation" and that he "knows these people (respondent/mother's family)
and you can buy visitation." (Emphases added) the Court is not convinced of this
argument or that this was his only motivation. Clearly, petitioner needed his license reinstated
AND he wanted his money back.
.
In any event, payment of child support does not "buy" a parent time with one's child
and it is not a bartering tool. Moreover, he already had the right of visitation from the Court
Order of February 2, 2000 (which he chose not to exercise) and from the divorce decree which
he ignored until such time as Child Support Collection began proceedings. There was nothing to
BUY! The Court firmly believes that he was attempting to intimidate respondent/mother into
returning the child support money collected on her behalf.
The Court is distressed that in the year 2000 petitioner/father chose not to see his
child because he was not treated by other family members in the manner he wished. Visitation is
a time to be cherished by the child and the parent. It is therefore, the finding of this Court that
Petitioner/father stopped visiting his child because he felt "disrespected" by other family
members and not due to any alienation of the child on the part of the respondent/mother or due to
any action or behavior on the part of the child.
Contrary to the petitioner/father's belief, the Court finds that the respondent/mother's
family did not behave in an inappropriate manner during the pick-up or drop-off of the child.
Rather, the Court finds that the petitioner/father inappropriately and voluntarily discontinued
visitation with the child. This was to the child's detriment and it was NOT in the child's best
interest as petitioner/father contends.
It is the finding of this Court that the petitioner/father had knowledge of where the
respondent and the child resided until such time as they moved to their confidential address and
that in any event, he had knowledge of the Post Office Box maintained by the
respondent/mother. He was not prevented from contacting the child rather, he chose not to
contact the child
As a result of the in camera, it is the finding of this Court that the
petitioner/father's refusal to visit with the child under the terms of the February 2, 2000 court
order caused great distress to the child who had to wait, outside on the corner in full view of his
neighborhood friends on two separate occasions for a father who failed to appear for visitation. It
is the further finding of this Court that the petitioner/father caused the child great distress in
failing to make any effort to contact the child since the last visitation took place in the year 2000,
save for two letters last year.
[*5]
The child will be 15 years old in January of
2010. The Court has met with the child in camera. The child was well dressed and
articulate. He does well in school and participated in school sponsored sports such as
football, wrestling and lacrosse. He has appropriate adult male role models. Moreover, the Court
is impressed with the emotional maturity and insight of the child.
The Court believes that it is in a child's best interest to have a relationship with both
parents, the Court however, under the facts of this case, will not set forth a schedule of visitation
as the petitioner/father seeks in his petition. By the same token, the Court will not suspend all
visitation as the respondent/mother seeks in her petition. Rather, in view of all the facts and
circumstances of this case the Court will allow the child to determine when he wishes to visit the
petitioner/father.
After due consideration of all the facts and circumstances of this matter, the
credibility and demeanor of the witnesses, the in camera, and all the evidence received
both testimonial and documentary it is:
ORDERED, that the petitioner/father shall have visitation with the child at such
times and places as the parties shall agree and upon the consent and agreement of the child.
The forgoing represents a decision and an order of this court.
ENTER,
Judge of the Family Court
Dated:_______________
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