Matter of P.P. v C.G.

[*1] Matter of P.P. v C.G. 2014 NY Slip Op 51468(U) Decided on September 28, 2014 Family Court, Bronx County Rosado, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 28, 2014
Family Court, Bronx County

In the Matter of a Custody Proceeding, P.P., Petitioner,

against

C.G., Respondent.



V-11183-13



Petitioner is represented by Scott I. Orgel, Esq., Eiges & Eiges, P.C.; Respondent is represented by Dana Stricker, Esq., Law Office of Dana Stricker, PLLC
Llinet M. Rosado, J.

Before this Court is P.P., hereinafter, "Petitioner," and C.G., hereinafter "Respondent.". The subject child, C.J., hereinafter "child," was born on August 23, 2011 and was not assigned an attorney due to said tender age. Petitioner herein petitions this Court for custody. Although Respondent has not petitioned the Court for relief, she opposes the instant petition and asks this Court to grant her custody with parenting time to the Petitioner.

Procedural History

On April 23, 2013, Petitioner filed a petition (V-11183-13) seeking custody of the child.

Petitioner alleged that Respondent is an unfit parent and he would be able to provide a stable home for the child. Respondent also alleged that he is able to provide medical and insurance benefits for the child as well as childcare.

Prior to the filing of this petition, Petitioner had little to no visitation with the child. On August 25, 2013, Petitioner was granted visitation with the child alternating Saturdays and Sundays from 12pm until 8pm. On November 12, 2013, Petitioner was granted alternate weekend visitation with the child from Friday through Sunday. On June 4, 2014, Petitioner was granted alternate weekend visitation with the child from Friday through Sunday and alternate Sunday visitation. Petitioner was also granted extended visitation from July 3, 2014 through July 6, 2014.

This Court conducted a fact finding hearing on June 23, 2014 and June 24, 2014. The only witnesses that testified were the parties herein. The only document submitted into evidence was the [*2]transcript of the paternity proceeding on May 17, 2013.[FN1] Upon the conclusion of said hearing, the Court reserved decision and set a schedule by which the attorneys were to submit written summations with a proposed parenting time.[FN2]

Petitioner's Case

Petitioner testified on June 23, 2014 and briefly on June 24, 2014. Petitioner was 31 years old at the time of his testimony.Petitioner testified that he obtained a Bachelor of Science in Public Administration and Political Science from Virginia State University. Petitioner is the General Manager at Starbucks Coffee Corporation and works Monday through Friday from 7am until 3:30pm or 4pm. Prior to this employment, Petitioner testified that he was a Store Manager at Best Buy.

Petitioner testified that he lives with is partner K.H., hereinafter "Ms. H", his son C and his stepson, J. Petitioner and Ms. H have lived together for 2 years [FN3] and currently reside in a two bedroom apartment. J and C share a room and Petitioner and Ms. H share another room. When the subject child is at the home, she sleeps in her own bed, located in the room occupied by Petitioner. Petitioner testified that if awarded custody of the child, he would move into a three bedroom apartment. Petitioner testified that Ms. H is not employed, but rather stays home to care for her special needs child, J. Petitioner testified that Ms. H and the subject child have normal parent-child interaction and the relationship between the subject child and her brother, C is very loving. Petitioner testified that during his parenting time, he, Ms. H and all three children engage in family outings and activities as a family. Additionally, Petitioner testified that, at times, he and the subject child have outings alone.

Petitioner testified that he complied with this Court's Order that they meet each other's respective paramours, by introducing Respondent to Ms. H. Petitioner did not meet Respondent's partner at the time, C.J., hereinafter "Ms. J".[FN4] Petitioner also testified that he has not formally met Respondent's current partner, T.M., hereinafter "Ms. M.," nor have the parties had any discussion regarding her.

Petitioner testified that the parties met while employed at Best Buy in Bronx, New York. At the time, Petitioner was the Store Manager and Respondent was hired by the General Manager, whom makes the final hiring decisions. Petitioner testified that the parties began a personal relationship in late October or early November of 2010. Petitioner testified that the relationship between himself and Respondent was sexual in nature from November 2010 until March 2011. Petitioner testified that during this time, he and Respondent engaged in sexual intercourse more than twice. During the same time, in January 2011, Respondent transferred to the Staten Island store location. In December 2010, Respondent informed Petitioner that she was pregnant and stated that the pregnancy was a result of artificial insemination. Respondent indicated to Petitioner that she and her then partner, Ms. J, used a turkey base and inserted sperm into herself to become pregnant. [*3]Petitioner inquired as to whether he could be the father since they were involved in a sexual relationship during the time of conception. Respondent told Petitioner that he was not the father. At some point later, Respondent acknowledged that there was a possibility that Petitioner could be the father, however, she stated that her intentions were to raise her child with her partner, Ms. J, and to not have any involvement from the father.

Petitioner testified that he purchased an "at home" DNA kit and for five or six months expressed the importance of identifying the father to the Respondent. Petitioner testified that Respondent would be "hot and cold" in that in one instance she would be in favor of said DNA testing and then she would cut off communication [FN5] .

Petitioner testified that he saw his child in November 2011, around Thanksgiving. Petitioner testified that Respondent and the child came to his apartment for a few hours for that visit. The child was three months old at the time. Petitioner testified that he then saw his child in May 2012

and July 2012 [FN6] . Petitioner testified that Respondent did not make any attempts to develop a relationship with him and the child and stopped letting him see the child altogether after the results of the "at home" DNA test and the DNA test administered by the Court named him the putative father of the child.

Petitioner testified that Respondent did not cooperate during the pendency of the paternity proceeding by failing to appear at many of the court appearances and/or appearing late and failing to appear for many of the Court scheduled DNA testing.[FN7] Petitioner testified that immediately after being identified as the father, Respondent then accused him of rape and would not let him visit the child. Petitioner testified that he did not see the child again until this Court's Order of Visitation was entered on August 17, 2013.

Petitioner testified that during the last three years, Respondent has had six residences. Petitioner testified that when he first saw his daughter in November 2011, Respondent was living in one room downstairs from a home. Petitioner described the room as being cold and having no furniture, except for an air mattress. Petitioner testified that at the time of the Court ordered visitation, Respondent was living in Staten Island with Ms. J, who was a parental authority to his child. Petitioner described the relationship as "on again, off again." Petitioner testified that when Respondent was evicted from this apartment, he helped Respondent move to her aunt's home in Brooklyn. Petitioner then testified that one month later he provided Respondent with twenty five [*4]hundred dollars for first and last months rent on a new apartment.[FN8] Respondent then moved to another home in Staten Island and is now living in Far Rockaway, Queens.

she has attended this daycare since March 2014; and this is the place Respondent intends to keep the child until she becomes of school age. Respondent testified that she did not discuss this school with the Petitioner prior to enrolling the child and did not place Petitioner on the blue card at the child's school.[FN10]

Respondent testified that she met Petitioner on October 7, 2010 during an interview at Best Buy. Respondent testified that Petitioner interviewed her for a second interview as a cashier at said establishment. Respondent testified that they initially engaged in usual work conversation which led [*5]to discussion of their common interests including music, learning to play the piano, and recording music at Petitioner's studio. Respondent testified that Petitioner began to flirt with her and she became uncomfortable, but she flirted back. Respondent testified that she allowed the flirtation because she needed the job and the Petitioner was her supervisor's supervisor.

Respondent testified that during work hours, Petitioner would come to the department she was at to check on her and often complimented her. Respondent testified that during her online training, Petitioner overheard her conversation about her sexual preference,[FN11] and then stated to Respondent that if she dated the proper person her "lesbian problem would be fixed."[FN12] Respondent testified that he was not mean about it, however it made her feel uncomfortable, insulted and hurt. Respondent testified that Petitioner then invited her to his birthday dinner and she accepted.

Respondent testified that the parties went to dinner together and spoke about music. Respondent testified that they talked about recording a song at his home and Respondent agreed to go to his home after dinner for that purpose. Respondent testified that while at Petitioner's home she had an alcoholic beverage and they talked about her sex life. Respondent testified that Petitioner stated that he has never had oral sex with a woman and asked to perform such acts on her. Respondent testified that she was hesitant at first but then agreed. Respondent testified that Petitioner tried to penetrate her; she stopped him and he stopped.

Respondent testified that she spent the night at Petitioner's home and while he was at work the following day, she recorded a song in his studio. Respondent testified, that night Petitioner asked to perform oral sex on her again and she agreed. Respondent testified that Petitioner then tried to penetrate her and she tensed up and hesitated. She then testified that he stated, "Please don't do this to me again." Respondent testified that she laid there and cried and when he was done he asked her "What's wrong?" She testified that she told him "I feel like you just raped me." Respondent then testified that Petitioner apologized to her and held her and she put her head on his chest and he rocked her. Respondent testified that she stayed at Petitioner's home that night and left the next day.

Respondent testified that she lost contact with Petitioner for a period of time, but they did engage in sexual intercourse again in February or March of the following year.[FN13]

Respondent testified that when they began to speak again, Respondent was having issues with her then partner, Ms. J. During that time, Respondent stated she was in an "on again off again" relationship with Ms. J whom she met in school in 2010.[FN14] Respondent testified that Petitioner assisted her if she needed rides to work or to school.

Respondent testified that she spoke to Petitioner about her relationship and the pregnancy. Respondent testified that, at that time, she considered having an abortion. Respondent testified that Petitioner told her he was dating Ms. H at the time but that he would date Respondent if she decided to leave Ms. J. Respondent also testified that while she considered having a relationship with Petitioner, at that point, and having him as a father figure in the child's life, she decided to continue [*6]the relationship with Ms. J instead.

Respondent testified that Petitioner threatened to advise Ms. J that he could possibly be the father of the child and not the donor that she and Respondent chose. Respondent testified that Ms. J first found out about Petitioner when Respondent received the Petition for Paternity and their relationship ended after the DNA results.

Respondent testified that during the paternity proceedings she testified that there was another man, B. B., hereinafter "Mr. B," who could be the father of the child. She testified that she and Ms. J chose Mr. B as their donor, and that Mr. B signed a contract. Respondent testified that in the contract with Mr. B, he agreed to relinquish all rights to the child and to donate his sperm.

Respondent testified that after the results of the DNA test, she tried to deny Petitioner's paternity and informed the Court that Petitioner raped her.[FN15] Respondent testified that she never filed a criminal complaint against Petitioner in relation to the alleged rape. Respondent also testified, at the May 17, 2013 paternity hearing that she did not want to ruin Petitioner's life, however she did not think it was fair that he be a part of the child's life when she planned to have this child with her partner, Ms. J. Respondent testified there was not supposed to be a father in the child's life, and Petitioner was not supposed to be the child's father. Subsequently, at the June 24, 2014 hearing, Petitioner testified that she did not want someone who raped her, specifically the Petitioner, to be a part of the child's life. During the May 17, 2013 hearing, Respondent also testified, and affirmed during her testimony on June 24, 2014 that Petitioner is a "good guy" and a mentor to her.Respondent testified she lived with Ms. J in a one bedroom apartment, in Staten Island, while they dated.[FN16] At one point, Respondent testified, Ms. J and she were in a "rocky" relationship and Respondent went to live with her aunt in Brooklyn.[FN17] She testified that Petitioner assisted her in that move. Respondent testified that she and Ms. J "worked it out" and she went back to the one bedroom apartment in Staten Island. Respondent testified that she and Ms. J then moved into the two bedroom apartment for which Petitioner provided her with twelve hundred dollars for the security deposit.[FN18] Respondent testified that the only other place that she has resided in the past three years, is the three bedroom apartment that she is now living in with Ms. M.

Respondent testified that Petitioner has met Ms. M on several occasions. Respondent testified that Respondent and Ms. M have spoken on the phone, text on the phone and Petitioner dropped the child off to Ms. M after one of his visits.

Respondent testified that Ms. M is very involved with the child in her daily routines. Either Respondent or Ms. M walk or drive the child to school each morning and pick her up from school [*7]each afternoon.[FN19] Respondent testified that each day after school, either Respondent or Ms. M will review her work from school, bathe her and have dinner. Respondent testified that they share an animated movie night each Sunday. Respondent testified that Ms. M is not a parental figure in the child's life, she is just a loving figure.

Respondent testified that the child is very loved and Ms. J also continues to be involved in the child's life.[FN20] Respondent testified that Ms. J speaks with the child on the telephone and face-times with the child.

Respondent testified that she does not feel that the child has reached a healthy level of comfort with the Petitioner. She testified that she is becoming more comfortable the more that Respondent tells the child "it's daddy," and she will go see her sibling. Respondent testified that the child does not want to leave her. Respondent testified that the child cries and reaches for her during the drop offs to the Petitioner. Respondent testified that the child cries when Respondent calls her when with the Petitioner. Respondent has stopped calling while the child is with the Petitioner because she does not want to interrupt the child's time with Petitioner.[FN21] Respondent further testified that Petitioner will call her however, so the child can say good night to Respondent.

Respondent further testified that she doesn't believe that Petitioner is spending enough time with the child while the child is in his home. Respondent testified that there is no attachment between the child and Petitioner. The child does not ask to speak with the Petitioner and the child is not excited to go with Petitioner.[FN22] Respondent testified however, that Petitioner stated the child is fine once they are gone, and Respondent believes him.

Respondent testified that she would like the child to remain in her custody. Respondent

testified that she is allowing the relationship between the father and the child to develop and the child is young enough that she can rebuild a relationship with the Petitioner. Respondent testified that she does not deny the Petitioner time with the child and he can come see the child, call the child and face time the child whenever he wishes. Respondent testified that she is encouraging the relationship with the Petitioner and the child should not be removed from the healthy environment that she is accustomed to.[FN23]

Respondent testified that she does not believe that the relationship between Petitioner and the child has been affected by the very limited contact that Petitioner had with child during the first year of the child's life. Respondent testified that any bonding that didn't take place during that period can be repaired. Respondent testified that Petitioner has seen the child every other weekend since the child's second birthday and that time is sufficient.

Respondent's Summation

Ms. Stricker filed a summation on behalf of the Respondent dated July 10, 2014. In her summation, Respondent requests that Petitioner's application for sole legal and physical custody of the child be denied and that the child be allowed to remain in the home of her mother as not to disrupt the life the child has come to know. Respondent argues that joint custody should not be granted as such an Order would allow Petitioner to continue to control Respondent. Respondent argues that if joint custody is granted in this case, Respondent will be forced into a relationship with Petitioner where she will feel powerless, defeated and unhappy and this would not be in the best interest of the child. Respondent argues that the relationship between Petitioner and Respondent is

dysfunctional. Respondent argues that she wants to remove herself from the relationship as she feels victimized. Respondent is requesting sole legal and physical custody of the child with parenting time to Petitioner. Respondent argues that the relationship between Petitioner and Respondent precludes a workable situation for Respondent.

Petitioner's summation

Mr. Eiges filed a summation on behalf of Petitioner dated June 25, 2014. In his summation, Petitioner argues that Respondent has a pattern of utter disregard for the legal rights of the Petitioner.[FN24] Petitioner argues that Respondent's testimony demonstrates her belief that she is entitled to whatever she wants, irrespective of the harmful effect on the lives of the other parties involved, including the child. Petitioner argues that Respondent has repeatedly ignored court orders and failed to show up to her court dates in order to avoid complying with said orders.[FN25] Petitioner argues that Respondent's behavior is not that of a parent who acts in the best interest of the child [FN26] or who will make a good faith effort to maintain a non-acrimonious relationship with the child's father for the sake of the child's relationship with him. Petitioner argues that Respondent cares more about controlling the life of the child than allowing the opportunity for the child to develop a relationship with Petitioner.

Petitioner argues that Respondent is unstable, capricious, and lacking in sound judgment. Petitioner argues that Respondent is not the type of person who can be trusted as the custodial parent

of a young child.[FN27] Petitioner argues that Respondent has demonstrated an obvious and pathological manner of alienating the child from Petitioner.[FN28] Petitioner argues that Respondent would not serve the best interest of the child if awarded primary physical custody.

Petitioner included a proposed Order of Custody and Visitation, awarding Petitioner primary physical custody of the child with Respondent receiving parental access with the child.

Law

There shall be no prima facie right to the custody of the child in either parent, but the court shall determine solely what is for the best interest of the child. Domestic Relations Law 70 The paramount consideration in determining custody is the best interest of the child. Eschbach v. Eschbach, supra; Friederwitzer v. Friederwitzer, 55 NY2d 89; Keating v. Keating, 147 AD2d 675. Among the factors to be considered are (1) the quality of the home environment and the parental guidance the custodial parent provides for the child, Eschbach v. Eschbach, supra at 172; Matter of Ebert v. Ebert,38 NY2d 700, 702, (2) the ability of each parent to provide for the child's emotional and intellectual development, see Porges v. Porges, 63, AD2d 712, 713, (3) the financial status and ability of each parent to provide for the child, (4) the relative fitness of the respective parents, (5) the length of time the present custody arrangement has been in effect and (6) the effect that an award of custody to one parent might have on the child's relationship with the other parent. In the matter of J.F. V. L.F., 181 Misc 2d 722; 694NYS2d 592 (1999); see also Eschbach v. Eschbach, supra. In determining custody between parents, the Court must look at the totality of the circumstances in order to determine what is in the child's best interest. Friedwitzer v. Friedwitzer, 55 NY2d 89, NYS2d 893, 432 NE 2d 765 (1982).

Furthermore, the natural right of visitation jointly enjoyed by the non-custodial parent and the child is more precious than any property right, Resnick v. Zoldan, 134 AD2d 246, 247, and the best interest of the child would be furthered by the child being nurtured and guided by both of the natural parents Bostinto v. Bostinto, 207 AD2d 471, 472. J.F. V. L.F. 181 Misc 2d 722; 694NYS2d. A custodial parent's interference with the relationship between a child and a non-custodial parent has been said to be an act so inconsistent with the best interests of the child as to per se raise a strong probability that the offending party is unfit to act as a custodial parent. Maloney v. Maloney, 208 AD2d 603, 603-604, Young v. Young, 212 AD2s 114, 115; see also Entwistle v. Entwistle, 61 AD2d 380, 384-385, appeal dismissed 44 NY2d 851; Leistner v. Leistner, 137 AD2d 499, 500; J.F. V. L.F.,181 Misc 2d 722; 694NYS2d.

Joint custody is not appropriate where there are sharp differences between the parties and an inability to cooperate on matters concerning the child. Joint custody is only appropriate where the parties are capable of cooperating in making decisions regarding what is best for the child. Where the parties have demonstrated an inability or unwillingness to communicate and cooperate in making decisions on matters relating to the care and welfare of the child, joint custody is clearly inappropriate. Fowler v. Rivera, 296 AD2d 409, 745 N.Y.S.2d 457 (2d Dept., 2002); Amari v. Molloy, 293 AD2d 431, 739 NYS2d 626 (2d Dept. 2002); see also Forzano v. Scuderi, 224 AD2d. 385, 637 NYS 2d 767 (2d Dept., 1996).

Discussion and Decision

After a careful and thorough review of the testimony, assessment of the witnesses' demeanor and credibility, the statues, and case law, the Court finds that it is in the best interest of the child that custody be awarded to the Petitioner father with parenting time to the Respondent mother. The Court was in the unique position to observe the demeanor and credibility of the witnesses at all six appearances, including the trial.

The Court did not find Respondent's testimony credible. Respondent's demeanor was inconsistent with the seriousness of what she was alleging and testifying to in Court. In speaking of the alleged rape, and the child's visitation with the Petitioner, she often smiled and laughed; [*8]showing a lack of seriousness for the situation at hand.

Respondent also made many contradicting statements regarding the Petitioner and the importance of the relationship between the Petitioner and child.[FN29] The Court finds Respondent's testimony incredulous. Respondent testified that the Petitioner has been a mentor to her on more than one occasion,[FN30] while also alleging Petitioner raped her and should not have a right to be in the child's life. Additionally, she testified that Petitioner was not supposed to be the father of her child.[FN31] Despite the alleged rape, Respondent remained in contact with Petitioner, while simultaneously depriving Petitioner access to his child. Respondent also indicated, by and through her attorney, that she planned to file criminal charges against Petitioner [FN32] while also testifying her hesitancy to have him convicted of rape and maintaining contact with him because "he isn't a bad guy."[FN33] Respondent alleges that there is no attachment between the child and father [FN34] and states that she should have custody of the child because she is "allowing a relationship between her and her father under legal circumstances."[FN35]

Respondent's contradicting testimony and actions indicate, that if awarded sole custody, Respondent would not be able to promote or foster a positive relationship between Petitioner and the child and would intentionally act to undermine the relationship between them. This would be extremely harmful to the child's well-being and contrary to her best interest. J.F. V. L.F.,181 Misc 2d 722; 694NYS2d. This Court further finds that Petitioner father is in a better position to facilitate a continued relationship between the child and the Respondent mother. In making the instant custody determination, this Court must consider the effect that an award of custody to one parent would have on the child's relationship to another. Bliss v. Ach, 56 NY2d 995, 998 (1982); Young v. Young, 212 AD2d, 114, 118; 628 NYS2d 957. Respondent has demonstrated that she is less likely to facilitate a continued relationship between the non custodial parent and the child in that she did not acknowledge paternity or allow visits even after paternity was established; she moved to vacate said paternity; she did not put Petitioner on the blue card at the school; and she did not discuss the school or inform the Petitioner of the school the child was attending. Furthermore, Respondent did not allow visits or extended visits with the Petitioner without the Court's intervention, and made many allegations during each appearance of corporal punishment, lack of supervision and issues with drop off and pick up. The Court finds that as the custodial parent, the Respondent will not fulfill her duty to protect and nurture the child's relationship with the Petitioner and will fail to ensure access by him. Daghir v. Daghir, 82 AD2d 191, affd. 56 NY2d 938. It is [*9]evident to this Court that Respondent is in denial that her behavior will adversely impact the father-daughter relationship and that the separation between Petitioner and the child will negatively effect their child's emotional well-being. By contrast, this Court finds the Petitioner's behavior is much more conducive to encourage a relationship with the Respondent and child. Petitioner has demonstrated a willingness to compromise and assist the Respondent in any way needed to ensure the well-being of the child. This Court finds that Petitioner is willing to foster a relationship between the Respondent and child if the child is in Petitioner's care.

Given the parties inability to speak with each other civilly regarding the welfare of the child, and the low regard with which the Respondent views the Petitioner's role as a parent, joint custody is simply not a viable option herein. Although no one factor is dispositive of the award of custody, in the light of the totality of the circumstances, the court has concluded that the best interest of the child will be served by awarding sole custody to the father. Friederwitzer v. Friederwitzer, 55 NY2d 89, 447 NYS 2d 893, 432 NE 2d 765 (1982). Although both parties have demonstrated the means by which to take care of the child and equal ability to provide intellectually for the child; the evidence presented indicates that Petitioner is better able to provide for the emotional well-being of the child while fostering an optimal relationship with the child and the Respondent. See Matter of

Osbourne S. v. Regina S., 55 AD3d 465 (1st dept. 2008), Matter of Matthew W. v Meagan R., 68 AD3d 468 A(1st dept 2009).

Although the child has always resided with Respondent, and stability is an important consideration and has been found to be in the child's best interest, it cannot be the decisive factor J.F. V. L.F.,181 Misc 2d 722; 694NYS2d. A change in custody may prove temporarily disruptive to the child, however, this is not dispositive. All changes in custody are disruptive. Matter of Nehrua v. Uhlar, supra, at 248 Young v. Young, supra at 124. In this case, the child's emotional stability will benefit from a change in custody, despite the fact that the child has always resided with the Respondent. See J.F. V. L.F.,181 Misc 2d 722; 694NYS2d .

Petitioner has demonstrated financial and housing stability and great home environment. He has been a Store Manager at Starbucks Coffee Corporation for the last three years. Prior to that he was a Store Manager at Best Buy, where he and Respondent met. Petitioner has resided in the same home for 2 years; with Ms. H, his son and his stepson. Petitioner describes a very loving relationship between the child and her sibling, Christian, who is three years old. Petitioner states that they participate in activities together as a family including family outings and have dinner daily together. When the subject child is with the Petitioner she sleeps in her own bed in the bedroom with Petitioner and Ms. H, while the other two children, both young boys, share a room. Petitioner has stated that if granted custody of the subject child, he would move to a larger apartment so that she may have her own room. His partner, Ms. H is a stay at home mother and cares for the children while Petitioner is at work.

Respondent's housing stability is questionable. Respondent and her current partner, Ms. M lives in a three bedroom apartment in Far Rockaway, Queens, New York. The child attends Little Einstein Day Care around the corner from their residence. She has been attending this day care since [*10]March 2014. Respondent states that Petitioner is not on the child's school records at the preschool [FN36] and she did not discuss the choice of school with Petitioner, prior to enrolling the child. Prior to her current relationship, Respondent was with her "on again off again partner" Ms. J; with whom the child shares the last name. During that time, Petitioner alleges that Respondent relocated six times; including two occurrences whereby Petitioner himself helped facilitate the moves and provided financial assistance for Respondent to obtain one of such stated residences. These moves included a move from Staten Island for being evicted and two moves from an apartment shared with Ms. J, during their break ups. Notably, Respondent's testimony corroborated Petitioner's testimony that he had assisted in moving her and the child and gave her money for one of the apartments.

Respondent testified that she and Ms. J were in an "on again, off again" relationship with Ms. J. for four (4) years, until recently.[FN37] Respondent testified that Ms. J and Ms. J's mother still maintains a relationship with the child and that the child also shares a close relationship with her current partner, Ms. M. While Respondent testified that all this extra loving is good for the child, she has expressed a very low opinion of Petitioner's role as a parent and does not view his participation in the child's life as significant. J.F. V. L.F.,181 Misc 2d 722; 694NYS2d. Respondent has made it clear that her intention was to have no involvement by the father. Respondent prevented contact with the Petitioner and the child for the first two years of the child's life, even after the paternity results ruled him the father. Respondent continues to create many obstacles to prevent the Petitioner from building a relationship with the child. Respondent filed a motion to have the paternity vacated and allowed visits only after an Order from this Court. Furthermore, Respondent has testified that Petitioner was not supposed to be the father of the child and she does not believe it is fair that Petitioner be in the child's life because of the alleged rape.[FN38] Moreover, Respondent's intention was to have a child with her partner, Ms. J, with no involvement from a male figure. Respondent did not want a man coming around to be a part of the child's life. Respondent believes that the limited contact between the child and Petitioner during the first year of her life has not affected the father-daughter relationship and that any affect on the bonding can be repaired.[FN39] Yet, Respondent had the opportunity to witness and enjoy all the first milestones of the child's life while preventing Petitioner from such bonding.

This Court also finds that it would serve the child's best interest to live with her sibling, C. Eschbach v. Eschbach, 56 NY2d at 173. "The stability and companionship to be gained from keeping the children together is an important factor for the court to consider." Id. Petitioner testified that the relationship between the subject child and her brother, C is very loving. Respondent testified that she tells her daughter she is going to see her sibling in order to make her excited about Petitioner's parenting time.Additionally, Petitioner testified that during his parenting time, both of his children and his stepson J, engage in family outings and activities as a family. While the child [*11]and J are not biological siblings, it is clear that all three children engage in familial activities thereby bonding and developing a sibling relationship.

The Court finds that the child enjoys a loving relationship with both her parents and ought to continue to have frequent contact with both parents.

Wherefore, based upon the foregoing, this Court finds that given the factors enumerated above, the child's best interests warrant that sole legal and physical custody of the subject child, C.J., be granted to Petitioner, P.P., with parenting time granted to Respondent, C.G., in accordance to this Court's Final Order of Custody and Visitation that follows.

THEREFORE, IT IS HEREBY ORDERED, that Father P.P. shall have sole legal and physical custody of the child, C.J.; mother shall turn child over to father forthwith, upon receipt of this Order; and

IT IS FURTHER ORDERED , that the father shall provide mother, C.G., with written notice of all issues that pertain to the child's education, religious training, health, welfare and other similar matters of importance. Father shall discuss and receive input from the mother regarding all major decisions regarding the child. In the event that the parties are unable to reach an agreement, after reasonable and meaningful discussion, father shall have final decision making; and

IT IS FURTHER ORDERED, that mother shall have parenting time with the child according to the following schedule:

IT IS FURTHER ORDERED, that mother shall have parenting time with the child every other weekend starting October 10, 2014 from Friday at 5pm until Sunday at 7pm. In the event that

the child does not have school on Monday, mother shall have parenting time until Monday at 7pm, or another time as agreed and arranged between the parties. Pick up and drop off shall be at Penn Station. In the event the mother moves to the Bronx or a closer vicinity in which she can ensure the child can get to school, mother shall have parenting time every other weekend from Thursday after school until Monday. Pick up and drop off shall then be at the child's school.

Mother shall have parenting time with the child every Wednesday from 5pm until 8pm. Pick up and drop off at Penn Station. In the event that mother moves to the Bronx, or a closer proximity to the child, in which she is able to ensure the child can get to school, mother shall have parenting time with the child each week from Wednesday at 5pm until the following morning, with drop off at the child's school, or another agreed upon location. In the event that this day is not convenient for the mother's work schedule, parties shall agree on a day each week that mother shall have parenting time with the child;

If either parent shall move from their current locations, they shall choose a mutually agreeable mid-point place for pick up and drop off; and

IT IS FURTHER ORDERED that in the event, except an emergency, that either party is unable to exercise the scheduled visit, they shall give the other party at least 72 hours notice, or as soon as reasonably able, of the inability to make the visit. In the event that alternate arrangements can be made for such, such arrangements should be honored; and

IT IS FURTHER ORDERED; that holiday access shall take precedent over regular visitation and shall be as follows:

a. Mother shall have access with the child every Mother's Day weekend; Father shall have access with the child every Father's Day weekend. Such access shall be from Friday at 5pm until Sunday at 6pm. The following weekend shall be enjoyed by the other parent;

b. If possible, both parties shall have access to the child on the child's birthday. Whichever parent is not scheduled to be with the child during the regular access schedule shall have the right to be with the child for (2) two hours, if such birthday falls on a weekday, or (4) hours if such birthday falls on a weekend;

c. Mother shall have access with the child for Winter Recess/February Recess/President's Week during odd numbered years; Mother shall have access for Spring Break/Easter Recess, during even numbered years. For purposes of this agreement, these weeks shall begin on Friday at 6pm the day school ends and shall end the following Sunday at 6pm. Pick up and drop off shall be at Penn Station, or a mutually agreeable location;

d. Mother shall have parenting time with the child for Thanksgiving during even numbered years; Father shall have parenting time with the child for Thanksgiving during odd numbered years. Such visitation shall take place from Wednesday preceding Thanksgiving at 5pm until Sunday at 7pm. Pick up and drop off at Penn Station, or a mutually agreeable location;

e. Mother shall have parenting time with the child for Christmas Eve during even numbered years. Such visitation shall take place from 10am until 8pm. Mother shall have parenting time with the child for Christmas Day during odd numbered years from Christmas eve at 8pm until Christmas Day at 8pm. Father shall have parenting time with the child for Christmas Eve during odd numbered years until 8pm. Father shall have parenting time with the child for Christmas during even numbered

years from Christmas Eve at 8pm until the following day. Pick up and drop off shall be at Penn Station or a mutually agreed upon location;

f. Mother shall have parenting time with the child for July 4th during odd numbered years from 10 am until the following day at 10am. If it should fall during mother's scheduled parenting time, drop off shall be Sunday at 7pm. Pick up and drop off shall be at Penn Station, or a mutually agreed upon location;

g. Mother shall have the child for New Year's Eve during even numbered years (i.e. December 31, 2014, 2016, 2018, etc.) from 10am until the following day at 10am. Father shall have parenting time for New Year's Eve during odd numbered years. Mother shall have parenting time with the child for New Year's Day during even numbered years (i.e. January 1, 2014, 2016, 2018, etc.) from 10am until the following day at 10am. Father shall have parenting time for New Year's Day during odd numbered years. Pick up and drop off shall be at Penn Station, or a mutually agreeable location; and

IT IS FURTHER ORDERED; that both parents shall have (2) two consecutive weeks of uninterrupted parenting time with the child during the summer. Mother shall have first choice of the (2) two weeks that she elects to take during odd numbered years. Father shall have first choice to select his (2) weeks during even numbered years. Such selections shall be given in writing to the other party by May 15th of each year; and

IT IS FURTHER ORDERED; that if either party shall travel outside of the State or Country [*12]with the child, they shall give at least one month notice to the other party with a full itinerary, including, flight information or other travel arrangements, hotel information and contact information;

IT IS FURTHER ORDERED; that both parties shall have the right to attend any activities or events involving the child. Neither party shall intentionally enroll the child in any activity designed to interfere with the other's access. Each party shall be responsible for ensuring that the child attend any regularly scheduled activities or events that shall fall during their parenting time and shall provide transportation for the same; and

IT IS FURTHER ORDERED; that both parties shall have liberal phone access with the child, while the child is in the other party's care; and

IT IS FURTHER ORDERED; in the event that either party shall be away from the child for a period of longer than 24 hours, while the child is in their care, the other parent shall have the right of first refusal;

IT IS FURTHER ORDERED; that mother shall have additional parenting time with the child as agreed and arranged between the parties; and

IT IS FURTHER ORDERED; that mother shall have independent access to all educational and medical records pertaining to the child; and

IT IS FURTHER ORDERED; that neither party shall disparage the other parent, or allow third parties to disparage the other parent in front of the child; and neither party shall use corporal punishment or allow third parties to use corporal punishment to discipline the child; and neither party shall question the child after the visits with the other parent; and

IT IS FURTHER ORDERED; neither party shall move further than 10 miles from New York City, without the written consent of the other party or permission from the Court; and

IT IS FURTHER ORDERED; that the parties may modify the Order on consent in writing;

IT IS FURTHER ORDERED, that father shall have the right to change the child's surname to P.

This constitutes the Decision and Order of the Court.

Dated: Bronx, New York

September 28, 2014

HONORABLE LLINET ROSADO

Acting Justice of Bronx Family Court

Footnotes

Footnote 1:Said Transcript was admitted without objection from Respondent as Petitioner's Exhibit A in Evidence.

Footnote 2:Said summations and proposed parenting time were due on July 28, 2014.

Footnote 3:Petitioner testified that he lived in this home for two years and prior to moving here, he lived in the same building in a one bedroom apartment. See, Trial Transcript June 23, 2014 pg. 39 line 7-8; Trial Transcript June 23, 2014 pg. 52 lines 9-19.

Footnote 4:Petitioner testified that the Court ordered both parties to introduce their partners to one another before overnight visits occurred. Petitioner testified that all parties were at the meeting, except Ms. J, however, he was given no explanation as to why she was not introduced to him. See, Trial Transcript June 23, 2014 pg. 40 lines 21-25; Trial Transcript June 23, 2014 pg 41 lines 1-13.

Footnote 5:Petitioner later testified that the at home DNA test was administered. He further testified after those results, Respondent did not let him see the child. See Trial Transcript June 23, 2014 pg. 28 Lines 8-20; Trial Transcript June 23, 2014 pg; He testified that as a result, he filed for paternity in Bronx County Family Court. See Trial Transcript June 23, 2014 pg. 33 lines 13-18.

Footnote 6:Petitioner testified that he saw his child in May 2012 when he assisted Respondent in moving from Staten Island to Brooklyn when she was evicted. See, Trial Transcript June 23, 2014 pg. 27 line 10-15; Trial Transcript June 23, 2014 pg 30 line 21-22, pg 31 line 4 and line 20. Petitioner further testified that he saw the child in July 2012 for the DNA testing. See Trial Transcript June 23, 2014 pg 30 lines 13-19.

Footnote 7:A review of the file for the paternity proceedings shows genetic marker tests were ordered on September 7, 2012, December 4, 2012, and February 1, 2013. Ms. G failed to appear at the December 4, 2012 court date, but was present at other court appearances. On April 5, 2013, Respondent filed a Motion to Dismiss the Order of Paternity stating that the child was a product of non-consensual sexual intercourse. The Support Magistrate denied that motion after a hearing held on May 17, 2013. On August 7, 2013 an Order of Filiation was signed on default of the Respondent and the sworn testimony of the Respondent-Mother, the sworn statement of Petitioner-Father and the result of the genetic marker test.

Footnote 8:Petitioner stated that when the child is with him, he introduces her to her paternal family, including grandmother, aunts, uncles and cousins. Petitioner testified that the child also has a relationship with her maternal grandfather, B.G., hereinafter "Mr. G." Petitioner testified that Mr. G would watch the child while Respondent was working. Petitioner testified that he has picked the child up from Mr. G's home and rehabilitation facility.

Respondent testified that Ms. J and Ms. M also help care for his child and may have parental authority over her. Petitioner testified that he has concerns about the parental authority or partners that have been introduced into the child's life. Petitioner testified that he believes that it may be confusing for the child. The child shares the last name with Ms. J, whom Respondent is no longer with. Petitioner testified that the child continues to have a relationship with Ms. J and Ms. J's mother, along with Respondent's new partner, Ms. M. Petitioner testified that he is deeply concerned about Respondent's ability to foster a positive relationship between the child and himself and testifies that he would be able to ensure there is a relationship between Respondent and the child if he were awarded custody.

Petitioner testified that he and Respondent have discussed methods of discipline concerning the child. Petitioner testified that Respondent inquired as to whether the child gets "pow pow" as a means of discipline. Petitioner testified that Mr. G, Respondent's father, uses "pow pow" as a form of discipline and the child does not like it. Petitioner further testified that Ms. H and himself use "time out" as a means of discipline.

Respondent's Case

Respondent testified on June 24, 2014. Respondent testified that she is currently in a relationship with Ms. M whom she met in school in 2009. At the time of the testimony, Respondent had been dating Ms. M for eight (8) months. Respondent testified that she and Ms. M live together in a three (3) bedroom apartment in Far Rockaway, Queens with the subject child. Respondent testified that the child has her own room while Respondent and Ms. M occupy the master bedroom, with a separate bathroom, and the last bedroom is for guests. Respondent testified that she did not discuss the living arrangement with Petitioner prior to the move, however she did inform Petitioner that she was moving to the Far Rockaway area. Respondent testified that the child is attending Little Einstein's Day Care school, located near the home;[FN9] Respondent testified that this is a learning environment for the child, in which they teach her to count, write her name, and learn her ABC's. Respondent testified that the school is teaching the child to become familiar with sharing and building relationships. See, Trial Transcript June 24, 2014 pg. 27 lines 22-25, pg. 28 lines1-3.

Footnote 10:Respondent testified that Petitioner has never asked to be on the school records and the information has not been updated. See, Trial Transcript June 24, 2014 pg. 57 lines 11-16.

Footnote 11:Respondent testified that she likes girls. See, Trial Transcript June 24, 2014 pg. 14 line 6.

Footnote 12:Respondent testified that Petitioner told her that she is not a lesbian and that it is just a phase. Respondent testified that Petitioner tried to convince her that she is not gay. See, Trial Transcript June 24, 2014 pg. 14 lines 7-9.

Footnote 13:Respondent testified that she was pregnant at the time the parties herein engaged in sexual intercourse again. See, Trial Transcript June 24, 2014 pg. 19 lines 3-7.

Footnote 14:Respondent testified that the relationship with Ms. J. started in 2010 until 2014. See, Trial Transcript June 24, 2014 pg. 20 lines 2-5

Footnote 15:A review of the Paternity file shows Respondent's attorney filed a motion to vacate paternity based on the alleged rape. A hearing on the matter was held on May 17, 2013.

Footnote 16:Respondent testified that she was pregnant at the time and that she and Ms. J. were planning to get a bigger apartment so the child would have her own room. See, Trial Transcript June 24, 2014 pg. 23 lines 20-25; Trial Transcript June 24, 2014 pg. 24 line 1.

Footnote 17:Respondent testified that she stayed in her aunt's home in Brooklyn for two nights before returning to her home in Staten Island with Ms. J. See, Trial Transcript June 24, 2014 pg. 24 lines 22-25.

Footnote 18:Respondent testified that she told Petitioner that it was expensive to live in New York and if she didn't get the 2 bedroom apartment with Ms. J. she was planning to move to Florida with the child. Respondent testified that Petitioner did not want her to move so he gave her the money for her security deposit. See, Trial Transcript June 24, 2014 pg. 25 lines 6-11.

Footnote 19:Respondent testified that the school is in walking distance from the home. She also testified that she works until about 3:30 or 4pm and is able to pick the child up from school. See, Trial Transcript June 24, 2014 pg. 27 lines 1-6.

Footnote 20:Respondent testified that Ms. J. has seen the child more than five times; she is not sure if it is more than ten times, but does not see the child on a regular basis. See, Trial Transcript pg. 52 lines 3-7.

Footnote 21:Respondent testified that when she calls the child while in Petitioner's care, the child cries and wants to leave Petitioner's home. See, Trial Transcript June 24, 2014 Pg. 30 lines 13-15.

Footnote 22:Respondent testified that she is concerned because the child is very attached to other people and has no problem leaving her to go with the other people that she is close to. See, Trial Transcript June 24, 2014 pg. 31 lines 17-24.

Footnote 23:Respondent testified that she believes the child should not be taken away from her known routine when she is allowing the relationship to develop under "legal circumstances." See, Trial Transcript June 24, 2014 pg. 32 line 25; Trial Transcript June 24, 2014 pg. 33 lines 1-4.

Footnote 24:Petitioner argues that Respondent consistently fails to be flexible with Petitioner throughout the proceedings. Respondent refused to change the pick up and drop off location after she moved; demanding that the pick up and drop off occur at her home in Far Rockaway, Queens. Respondent refused to allow Petitioner to have one extra day of visitation for a holiday weekend in which he was planning to travel with the child. See, Attorney's Summation for Petitioner.

Footnote 25:Petitioner is referring to Respondent's failure to appear on three instances during the Paternity proceedings. See, Attorney's Summation for Petitioner.

Footnote 26:Petitioner is referring to Respondent's allegations of rape in a court of law and her failure to file criminal charges as an act of benevolence.. He characterizes this allegation as a chance of fulfilling her own self desires and an attempt to gain leverage against Petitioner. See, Attorney's Summation for Petitioner.

Footnote 27:Petitioner argues that Respondent is inclined to pursue whatever course seems to serve her at one instant, only to later go back on what she said or planned. See, Attorney's Summation for Petitioner.

Footnote 28:Petitioner argues that there is a list of actions that clearly show that Respondent is alienating the relationship. See, Attorney's Summation for Petitioner.

Footnote 29:See, Trial Transcript June 24, pg. 32 lines 10-21; Trial Transcript June 24, 2014; Trial Transcript June 24, 2014 pg. 33 lines 18-25; Trial Transcript June 24, 2014 pg. 34 1-11; Trial Transcript June 24, 2014 pg 43 lines 8-12.

Footnote 30:See, Trial Transcript June 24, 2014 pg 45 lines 4-10.

Footnote 31:See, Trial Transcript June 24, 2014 pg 41 lines 13-14; Trial Transcript May 17, 2014 pg. 24 lines 13-15.

Footnote 32:See, Trial Transcript May 17, 2014 pg 9 line 13-14.

Footnote 33:See, Trial Transcript June 24, 2014 pg 48 line 5-10; Trial Transcript May 17, 2014 pg 23 lines10-13. See Also Trial Transcript June 24, 2014 pg. 45 lines 4-10.

Footnote 34:See, Trial Transcript June 24, 2014 pg 31 lines 14-15.

Footnote 35:See, Trial Transcript June 24, 2014 pg 33 lines 2-4

Footnote 36:See, Trial Transcript June 24, 2014 pg. 57 lines 11-13.

Footnote 37:See, Trial Transcript pg 20 lines 4-10.

Footnote 38:See, Trial Transcript May 17, 2013 pg. 24 lines 8-15; Trial Transcript June 24, 2014 pg 41lines 10-14.

Footnote 39:See, Trial Transcript June 24, 2014 pg 33 lines 23-25; Trial Transcript June 24, 2014 pg 34 lines 1-2.