M.B. v J.B.

[*1] M.B. v J.B. 2016 NY Slip Op 51490(U) Decided on October 13, 2016 Supreme Court, Kings County Thomas, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 13, 2016
Supreme Court, Kings County

M.B., Plaintiff,

against

J.B., Defendant.



XXXXX/XXXX
Delores J. Thomas, J.

Recitation, as required by CPLR § 2219 (a), of the papers considered in the review of this motion:

Papers Numbered

Notice of Motion/Order to Show Cause/Petition/Cross Motion and Affidavits (Affirmations) Annexed 1

Answering Affidavit (Affirmations) 2

Transcript of Proceedings held on September 20, 2016 3

Plaintiff moves by emergency order to show cause, post judgment, for an order: (1) modifying the custody provision of the stipulation of settlement dated December 30, 2011, the terms of which were incorporated by reference, but not merged, in the judgment of divorce dated September 28, 2012, by awarding Plaintiff all decision making with respect to the education and selection of schools for the children; and (2) alternatively, staying enforcement of the provisions of the judgment of divorce which granted Defendant the right to select a school for the parties' son F.B.

Defendant opposes the motion in its entirety.

FACTUAL AND PROCEDURAL HISTORY

The parties were married on November 30, 1999 in a religious ceremony in Brooklyn, New York. There are two children of the marriage, F.B. born in October 2001 and E.B. born in July 2005.

Plaintiff commenced this action by filing summons with notice on December 28, 2011. This was an uncontested action for divorce on the grounds of irretrievable breakdown of the relationship pursuant to Domestic Relations Law § 170 (7). The parties settled all ancillary issues of this divorce action by executing a stipulation of settlement on December 30, 2011, which was filed on April 2, 2012 along with a request for judicial intervention for an uncontested [*2]matrimonial action and the note of issue. The parties agreed, in pertinent part, that (1) the parties shall have joint legal custody (2) the children shall primarily reside with Plaintiff; (3) Defendant shall have liberal visitation with the children in addition to the parameters set forth in the agreement; (4) "the Parties shall endeavor to and WILL consult with each other with regard to each Child's education and religious training, however [Defendant] shall have the final decision on the tutors for [F.B.], if needed, and pay for same . . .;" (5) "[Defendant] shall be the one deciding the school for [F.B.];" and (6) Plaintiff shall reside in Brooklyn, New York.

The judgement of divorce was entered on September 28, 2012. Therein, it granted the parties joint legal custody and Plaintiff primary physical custody of the parties' children, and the parties' stipulation of settlement was incorporated by reference, but not merged with the judgment.

On June 3, 2016, Defendant filed and emergency order to show cause to enjoin Plaintiff from interfering with his custodial right to select a school for F.B. pursuant to the parties' agreement, which was made returnable on June 23, 2016 (Motion Sequence No. 1). That day, the court also entered an order appointing Matthew Kazansky, Esq. as the attorney for the children. On June 23, 2016, the motion was denied for nonappearance of the moving party.

On August 18, 2016, Plaintiff filed the instant order to show cause which was made returnable on September 9, 2016 (Motion Sequence No. 2). The order to show cause also restrained and stayed Defendant from physically changing F.B.'s school, although he was allowed to proceed with registration. Mr. Kazansky was reappointed as the attorney for the children, nunc pro tunc to June 24, 2016. The motion was adjourned to September 20, 2016 for oral argument, and deemed fully submitted on September 23, 2016 upon receipt of the transcript. PLAINTIFF'S CONTENTIONS

Plaintiff alleges that she felt compelled to sign the stipulation of settlement because Defendant, in negotiating the terms of their divorce, threatened to withhold the Get (Jewish divorce) if she did not succumb to his pressure and demands. Shortly after executing the settlement agreement, Plaintiff claims that Defendant remarried and moved to Monsey, New York with his new wife, limiting his access to and parenting time with the children.

Plaintiff argues that F.B. has attended a school in Williamsburg, Brooklyn since the age of 3, and that the school was jointly selected by the parties at that time. She claims that he is doing well in school and has developed many friendships. Defendant seeks to enroll F.B. in a dormitory school in Monsey, New York, where he now lives. Contrary to Defendant's position in his order to show cause, Plaintiff claims that children in their community who are F.B.'s age do not attend dormitory schools when the child is doing well in their neighborhood school. Alternatively, Defendant seeks to enroll the child in a day school in Monsey, New York, where he would have to reside with Defendant. Plaintiff believes that Defendant is attempting to change the child's school to interfere with her rights as the primary physical custodial parent.

Plaintiff also claims that the child does not want to attend school in Monsey, New York, and would rather stay at his current school in Williamsburg. She argues that Defendant cannot advance a valid educational reason for changing the child's school that would promote the child's best interests, and that this proposal is merely intended to promote Defendant's own interests.

DEFENDANT'S CONTENTIONS

In opposition, Defendant claims that not only does the agreement clearly state that he has the sole authority to select a school for F.B., but it is also a tenet of their religious community for the father to be responsible for the education of male children. Defendant alleges that F.B. has [*3]befriended children at school who are performing poorly academically, smoke, and otherwise are a poor influence for him. Defendant claims that he is actively involved in F.B.'s education and that the teachers at the Williamsburg school support F.B. attending Nitra, which is a high caliber school.

Defendant denies Plaintiff's allegation that she entered into the settlement agreement on account of him threatening to withhold the Get, and claims that he was the one who was eager to get divorced on account of Plaintiff's constant verbal abuse, erratic behavior and mental health issues. He claims that he relocated after his remarriage because Plaintiff continued to harass him in the community. Defendant alleges that Plaintiff engages in conduct intended to alienate him and interfere with his custodial rights. Plaintiff has made decisions regarding the children's medical care despite the provisions of their agreement granting the parties joint legal custody. Defendant also alleges that Plaintiff has unilaterally enrolled F.B. in school despite the agreement explicitly stating that Defendant has the exclusive right to select schools for F.B. Plaintiff has also restricted his visitation and parenting time and filed a petition in Kings County Family Court seeking supervised visitation and sole custody. Plaintiff's Family Court petition was ultimately dismissed for failure to state a cause of action (Defendant's Exhibit B).

Defendant, in exercising his rights under the parties' settlement agreement, has secured enrollment at two schools in Monsey, New York: Nitra Yeshiva, which is a dormitory school, and United Talmudical Academy (UTA) of Monsey, a day school that would require F.B. living with Defendant. Defendant notes that UTA of Monsey is the same school that F.B. currently attends, just in different city. Defendant claims that if the issue of F.B. living with him is a determinative factor, he is willing to enroll F.B. in the dormitory school instead. Defendant also claims that F.B. has several friends at Nitra.

Defendant claims that as a 14-year old is not mature enough to select his own school, and asks that the court not make his position a determinative factor.

DISCUSSION

Pursuant to Domestic Relations Law § 240 (1) (a), "[i]n any action or proceeding brought . . . to obtain, by . . . order to show cause, the custody or right to visitation with any child of the marriage, the court shall . . . enter orders for custody and support as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties and to the best interests of the child." "In all cases there shall be no prima facie right to the custody of the child in either parent" (id.). Where parents enter into an agreement concerning custody, that agreement will not be modified unless there is an unanticipated and sufficient change of circumstances since the time of the stipulation, and unless modification of the custody arrangement is in the best interests of the child (see Said v Said, 61 AD3d 879 [2d Dept 2009]). While the parties may enter into agreements regarding the custody of their children, such agreements are always subject to the power of the court to determine the best interests of the children (Agur v Agur, 32 AD2d 16 [2d Dept 1969]).

The parties' agreement states that they will share joint legal custody of the children, and that they will consult each other on issues regarding the children's education and medical care, but grants Defendant final decision making authority on certain aspects of the their son, F.B.'s, religious and educational upbringing. Plaintiff claims that she should be granted final decision making authority with respect to F.B.'s education because Defendant seeks to remove F.B. from the school and community that he has grown up in and been a part of since the age of 3, and has chosen a school in Rockland County for the sole purpose of removing the child from her [*4]custody. Although the agreement plainly states that Defendant shall select the school for F.B., it also very clearly states that Plaintiff shall have primary physical custody of the children, and that Plaintiff shall reside in Brooklyn, New York. The agreement is silent on limitations to Defendant's ability to remove F.B. from Brooklyn to enroll him in Defendant's choice of school. However, Defendant's selection of a school in Monsey puts these particular provisions of the agreement at odds. F.B. cannot "primarily reside with Mother" who is to remain in Brooklyn if he attends school in Rockland County, regardless of whether it is a boarding or day school. In exercising his right to select a school for F.B., Defendant's present selection of school fundamentally alters the physical custody of the child, and presents an issue of relocation of F.B., and possible change of physical custody. Defendant himself admitted that if the child were to attend UTA Monsey, it would require F.B. living with him. The parties have, in their competing affidavits, raised sufficient issues of fact as to whether it would be in F.B.'s best interest to modify the parties' agreement and grant Plaintiff final decision making authority regarding the children's education or to allow Defendant, in exercising his right to select a school for F.B., to effectively relocate F.B. to Rockland County and alter the physical custody arrangement agreed to by the parties. Therefore, a hearing is necessary to determine these issues (see Anstett v Wolcott, 94 AD2d 692 [2d Dept 1983]).

Further, while Defendant is correct that F.B.'s preference should not be determinative, F.B. is 14 years old and his preference as represented by Mr. Kazansky at oral argument, is entitled to some consideration in determining whether or not changing the child's school to Monsey, New York is in his best interest (9/20/2016 Tr. at 19; see Bullotta v Bullotta, 43 AD2d 847 [2d Dept 1974] [the court should have ascertained the wishes of the parties children, aged 8, 13 and 15, although, standing alone, it would not be determinative of the custody issue]; Byron v Davis, 37 Misc 3d 606 [Monroe Co 2012]). As this court's paramount concern is the best interests of the child, a hearing is required to determine whether or not removing F.B. from Brooklyn to attend school in Monsey is in his best interest. Until a determination is made, the parties must maintain the status quo, and F.B. shall continue to attend his school in Williamsburg, Brooklyn, pending a final determination of this motion.

CONCLUSION

For the foregoing reasons, it is hereby ORDERED that Plaintiff's motion to modify the custody provisions granting Plaintiff all decision making power with respect to education and selection of schools for the children or to stay enforcement of Defendant's right to select a school for F.B. is granted to the extent that there will be a hearing to determine if Plaintiff's application is in the best interests of the F.B. F.B. shall continue to attend school in Brooklyn, New York, pending a final determination of this motion; and it is further

ORDERED that the court shall appoint a forensic evaluator to evaluate the parties and their children and report on the issues of physical custody/parenting time, decision making, relocation and interference with parental rights under separate order.

The parties shall appear for a settlement conference on Thursday, October 27, 2016 at 2:00 p.m. If this issue is not settled on that date, the parties will select dates for a hearing.

Any issue raised and not addressed in this decision and order is denied.

This constitutes the decision and order of this court.

DATED: October 13, 2016

HON. DELORES J. THOMAS, J.S.C.