Edwin C. v Charmaine P.
Annotate this CaseDecided on September 11, 2009
Family Court, Jefferson County
Edwin C., Petitioner,
against
Charmaine P., Respondent.
V-3632-08/08A
Rand R. Timmerman, Esq. o/b/o Charmaine P.
Beth A.S. Locastro, Esq. o/b/o Edwin C.
Lisa A. Proven, Esq., Attorney for the Child.
Richard V. Hunt, J.
This decision is based on a motion submitted by Rand R. Timmerman, Esq., attorney for Respondent, Charmaine P. (hereinafter "mother"), seeking a stay of the proceedings under the Servicemember's Civil Relief Act and return of the child, F.C. (hereinafter "the child"), to New York State to live with a third party designated by the mother in her family care plan. The father does not oppose the request for the stay. He does oppose the request of the mother that the child be removed from his care and custody and be turned over to a third party.
The instant action was commenced by the above-stated Petitioner (hereinafter "father") by the filing of a petition on December 17, 2008, seeking to modify the parties' prior Order of Custody and Visitation under the Uniform Child Custody Jurisdiction and Enforcement Act. This Court entered a Temporary Order after the parties' in-court stipulation on March 20, 2009, wherein the parties would share custody of the child in sixty (60) day cycles with the mother's sixty (60) days commencing on March 20, 2009. Each parent was to receive one (1) week of parenting time, as agreed, during the other parent's sixty (60) day visitation cycle. If the parties were unable to agree on the dates for parenting time, the parenting time would begin on the fourth (4th) Saturday of each sixty (60) day cycle.
The matter was further scheduled for trial on June 11, 2009 and June 12, 2009. The [*2]Court did hold the first two (2) days of trial on the scheduled dates and adjourned to continue the trial on later dates. After the proceedings on June 12, 2009, the Court ordered that the father should have his visitation with the child from June 12, 2009 to July 5, 2009.
On or about June 15, 2009, the mother was deployed to Iraq. The Court was not made aware of the mother's absence until two (2) days after her actual deployment. The mother alleges that she did not receive notice of her deployment until the day she was required to leave. She claims that she tried to postpone her deployment due to the pending Family Court matters, but was unsuccessful. The father alleges that the mother knew of her upcoming deployment and was deceptive to the Court. The father claims that the military provides at least forty-eight (48) hours notice to troops when they are being deployed. Despite each of the parties' contentions herein, it is undisputed that the mother was deployed on or about June 15, 2009 and the mother designated a family care provider to care for her children in her absence. She designated a family care provider other than the father for the child at issue.
It should also be noted that the child does have special needs. The child requires physical therapy, occupational therapy, speech therapy, and special education. The mother did have these services established for the child in New York State.
As stated above, Mr. Timmerman is now requesting that the Court invoke the Servicemember's Civil Relief Act and staying the proceedings until the mother returns from deployment and can be present in Court. He is also requesting that the child be returned to New York to reside with the mother's designated family care provider and the child's siblings, with reasonable visitation to the father which does not interfere with the child's services related to his special needs.
Mr. Timmerman argues that the return of the child to New York is in the best interests of the child. Mr. Timmerman first notes the special needs of the child. He states that the father is denying the child his already scheduled therapies which the mother had established in New York State.
Mr. Timmerman also states that the father is frustrating the mother's phone contact with the child. The mother complains that she is often unable to reach the child when she calls and the father limits the time that she does receive for telephone contact, which prevents her from having quality parenting time with the child.
Mr. Timmerman also notes the lack of relationship between the father and the child. He states that the testimony presented at trial on June 11, and June 12, 2009, made it clear that the father had only seen the child four (4) times after the child's birth. Meanwhile, the child has spent all of his life with his mother and his siblings. Mr. Timmerman further argues that the father had failed to provide proof of any financial issues that would have restricted him from having contact with his child.
Mr. Timmerman includes allegations that the father failed to properly administer the child's daily dose of iron while the child was in the father's care. It is also alleged that the father is seeking custody merely to avoid paying child support.
Next, Mr. Timmerman notes the lack of any investigations into the living conditions of the father's home or the child's daycare provider in the State of Maryland.
Lastly, Mr. Timmerman references the bond between the subject child and his brothers here in New York State. He claims that the brothers are being "deprived" of their right to [*3]visitation with the subject child. He requests that the child be returned to New York State to be with his siblings and the mother's designated family care provider while the mother is deployed to Iraq.
Beth A. S. Locastro, Esq., attorney for the father, has submitted an Affirmation in Opposition to the mother's motion. Ms. Locastro argues that the child should remain with the father while the mother is deployed as it is in the child's best interest. Ms. Locastro points out that the father has had the child in his care since June 12, 2009. She states that the child is well-adjusted to the father's home and has bonded with his half-sibling. She further states that the child has been established in daycare, has medical providers and is currently being set up for other required services in the Maryland/District of Columbia area. Ms. Locastro claims that the father encourages a relationship between the mother and the child and ensures that the child speaks with the mother whenever she calls from Iraq. Ms. Locastro argues that based upon the testimony presented to the Court thus far, it is in the child's best interest to remain with the father. Ms. Locastro requests that the Court consider the stability of the child's current home environment as well as the testimony presented to the Court on June 11, 2009 and June 12, 2009. The father considers himself to be a fit and loving parent, who is financially able to care for the child.
Ms. Locastro further argues that the mother is improperly attempting transfer her rights as a parent to her designated family care provider. Ms. Locastro states that the family care provider has no legal standing to gain custody over the child as she is not a party to this action.
Lisa A. Proven, Esq., attorney for the child, has submitted an Affidavit in partial support of the mother's motion. Ms. Proven requests that the ultimate decision in this matter be stayed until the mother returns from deployment. Ms. Proven further requests that the child be allowed to spend one (1) week per month with his brothers in New York. Ms. Proven states that the sibling visits will minimize the trauma to the child during his mother's deployment. Ms. Proven further argues that the said visits would allow the child's regular therapists to evaluate the child's status and provide suggestions to tailor the child's therapy.
The Court notes the parties' arguments as to whether the Court should issue a temporary or final order in this matter pursuant to Domestic Relations Law § 75-l. The Court does note Ms. Locastro's affirmation regarding recent amendments to this statute. However, the Bill that Ms. Locastro referred to has not been enacted. As such, the Court declines to issue a final order in this matter at this time. Instead, the Court hereby applies its discretionary powers under the Servicemember's Civil Relief Act (SCRA) § 522(b) and grants the mother's motion for a stay of the proceedings under the SCRA until the mother returns from her deployment in Iraq. The Court, having reviewed Mr. Timmerman's letter to the Court, dated June 17, 2009 and Affidavit, dated July 13, 2009, finds that the mother's ability to defend the proceeding is materially affected by her military service at this time. See, Military Law § 304. As the United States Supreme Court has stated, "the Act (SCRA) must be read with an eye friendly to those who dropped their affairs ro answer their countries call." Le Maistre v. Leffers, 333 U.S. 1, 68 S. Ct. 371, 92 L. Ed. 429 (1948); see also Boone v. Lightner, 319 U.S. 561, 63 S. Ct. 1223, 87 L. Ed. 1587 (1943). Therefore, given the mother's military deployment to Iraq, the Court finds the stay to be appropriate.
The Court further finds that a temporary custody order is essential in this case pending the [*4]mother's absence and pending further order of this Court. The Court finds, upon clear and convincing evidence, that a temporary order is in the best interest of the child. See Dom. Rel. Law § 75-l(2); Military Law § 253. This finding is based upon all of the proof before the Court at this time, including the evidence presented during the first two (2) days of trial. With regards to the temporary order, the Court finds in the following manner.
The Court hereby denies the mother's request for the child to be returned to New York State to reside with the mother's designated family care provider. The family care provider is a non-parent. Therefore, the Court must first determine whether extraordinary circumstances exist pursuant to Bennett v. Jeffreys before the father's right to custody can be challenged while the mother is deployed. See Bennett v. Jeffreys, 40 NY2d 543, 387 NYS2d 821, 356 NE2d 277; see also Diffin v. Towne, 3 Misc 3d 1107(A), 787 NYS2d 677, 2004 WL 1218792 (N.Y.Fam.Ct.). The father, who is the natural parent, has parental rights which cannot be superceded so long as his rights have not been forfeited by certain acts or omissions on his part. Jeffreys, 40 NY2d at 546. Here, the father has not engaged in any gross misconduct or other behavior to forfeit his parental rights. The Court does note that it has taken testimony in this matter as part of a custody trial that was interrupted by the mother's deployment. In fact, the Court heard testimony from both parents as part of the proceeding. The Court is aware that there was a lengthy time period that the father did not have contact wit the child, but the Court also notes that the mother sent the child to the father in the fall of 2008, for the father to take care of the child even before all of the legal proceedings were initiated.
Thereafter, neglect allegations were brought against the mother which were eventually resolved by an Adjournment in Contemplation of Dismissal (ACD).
There had also been a shared custody visitation schedule between the mother and the father for some time by Court Order.
The Court, based on the testimony that it has heard so far, does find that the father, until the fall of 2008, had undergone a period of limited contact with the child. The Court also finds that the father bore some responsibility for the lack of contact. However, the Court also finds the mother to be significantly at fault due to her failure to keep the father informed of her whereabouts on multiple occasions, making it difficult for the father to locate her and the child; and furthermore, the Court finds, based on her testimony, that she has on numerous occasions, undertaken a pattern of conduct to deny the father access to the child. In addition, the Court finds that since the fall of 2008, the father has demonstrated his strong intent to have a relationship with the child and to be a father to the child.
The Court also notes, under the extraordinary circumstance issues question, that the Court has considered that the child clearly does have special needs; however, the Court has not received any evidence that these needs were so extraordinary or so specialized that they could only be addressed in New York State. The Court has hereinafter made provisions to ensure that the child is obtaining the needed services while in the care of the father.
Therefore, based upon the record before it, the Court finds that extraordinary circumstances do not exist to consider placing the child with a non-parent. The fact that the mother is away on military duty and currently unable to be the custodian for the child is not an extraordinary circumstance with regard to the father's ability to be the custodian for the child. Diffin v. Towne, 3 Misc 3d 1107(A), 787 NYS2d 677, 2004 WL 1218792 (N.Y.Fam.Ct.). [*5]
The Court notes that the child has been with the father since June 12, 2009 and had previously been with the father from November 2008 to March 20, 2009. Therefore, the child has had time to adjust to the father's home and family members, including the child's half-sibling. Moreover, the father has stated that he has set up medical providers for the child in that area and is currently setting up other specialized services for the child. Under all of the circumstances herein, the Court finds that, upon clear and convincing proof, the current custody arrangement, i.e., custody with the father, is in the best interests of the child at this time. However, the Court directs the father, through his attorney, to provide the attorney for the mother, the attorney for the child, and this Court with a written report or reports that the child is receiving all necessary services. The report(s) shall be submitted within forty-five (45) days from the date of this Decision and Order. The Court further directs that the father, through his attorney, shall keep the attorney for the mother regularly informed of the child's services thereafter.
It is clear that the child has a bond with his other half-siblings in New York State, having lived with them for most of his life. Therefore, the Court finds it appropriate to award sibling visitation for one (1) week every six (6) weeks while the mother is deployed and pending further order of this Court. This visitation shall take place in New York State at the designated family care provider's residence. The father and family care provider shall arrange to meet at a half-way point to transport the child each way. The first week of sibling visitation shall commence on Saturday, October 3, 2009 and end on Saturday, October 10, 2009. Visits shall occur every six (6) weeks thereafter. The Court does find that visitation every four (4) weeks would be a substantial transportation burden to the parties and would also disrupt services for the child.
The Court notes the attorney for the child's suggestion that the child be seen by the local therapists while here. The Court directs that the therapists for the child, while the child is with the father, communicate with the Jefferson County therapists and work out the best schedule to meet the child's needs.
The mother is permitted to have telephone contact with the child three (3) times per week for approximately fifteen (15) to twenty (20) minutes. The phone calls shall take place between the hours of 6:00 p.m. and 7:00 p.m. on Sundays, Tuesdays, and Thursdays (local time for the father), subject to the parties' work schedules and the child's scheduled services.
The Court is concerned with the level of acrimony between the parties at this time. The Court is unable to continuously monitor the unrelenting nitpicking and uncooperative behavior between the parents. It is for this reason that the Court has implemented such a rigid visitation schedule. The Court further notes that any further issues in this case shall be dealt with by formal motions to the Court, rather than letters and/or faxes.
The Court hereby finds all remaining arguments to be without merit.
Based on the papers submitted to the Court, it is ORDERED that the mother's request for a stay of the proceedings is hereby granted under the Servicemember's Civil Relief Act and the mother's motion for return of the child to New York State is hereby denied, with the exception of the sibling visitation as outline above.
This constitutes the decision and order of this Court.
Dated: September, 2009ENTER
[*6]
_____________________________________
Hon. Richard V. Hunt
Family Court Judge
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