Matter of Kevin J. D. v Kerry-Ann F.
Annotate this CaseDecided on June 30, 2017
Family Court, Erie County
In the Matter of a Proceeding Under Article 6 of the Family Court Act Kevin J. D., Petitioner
against
Kerry-Ann F., Respondent. In the Matter of a Proceeding Under Article 6 of the Family Court Act KERRY-ANN F., Petitioner KEVIN J. D., Respondent.
In the Matter of a Proceeding Under Article 6 of the Family Court Act KERRY-ANN F., Petitioner v
against
KEVIN J. D., Respondent.
V-06569-15/16A
RACHEL KATHARINE MARRERO, ESQ.
Attorney for Father, KEVIN J. D.
TARA ANNE MIDLIK, ESQ.
Attorney for Mother, KERRY-ANN F.
JOSEPH CHARLES BANIA, ESQ.
Attorney for Children, KADAJ (9) and KEVIN (10)
Mary G. Carney, J.
Before the Court are two (2) petitions to consider — the first, a Violation Petition, filed by Kevin J. D., (hereinafter referred to as "Father") against Kerry-Ann F. (hereinafter referred to as "Mother") alleges that Mother failed to abide by the terms of their September 29, 2015 order and seeks enforcement of that order. The second, is a Modification Petition filed by Mother seeking to terminate all physical access between Father and children alleging she and the children were harassed during access periods.
Testimony was heard on April 26, 2017. Father and Mother were the only two witnesses to testify. The Court held separate in camera conferences with Kadaj (9) and Kevin (10) on June 14, 2017. This Court has had the unique opportunity to evaluate and observe the demeanor, temperament and sincerity of the witnesses and weigh their respective credibility. This Court has further considered the petitions filed by each party, the exhibits received in evidence together with the applicable statutory and case law and now makes the following findings of fact and conclusions of law.
FINDINGS OF FACT
The parties entered into a consent order on the record before the undersigned in or around September, 2015. The order was later submitted for entry in or around December, 2015. Pursuant to their agreement, Father was entitled to regular access one (1) Saturday per month for a period of at least three (3) hours in addition to reasonable telephone and correspondence access. Father testified that since the order was entered, he has only been afforded three (3) periods of physical access with the children having seen them in October, 2015, December, 2015 and January, 2016 and that all the visits went well. Father simply seeks enforcement of the prior consent order.
Mother testified that she was aware of the court's order and brought the children to the Auburn Correctional Facility to see their Father at least five (5) times — October, 2015, November, 2015, January, 2016, February, 2016 and March, 2016. Mother alleged that the visits were very upsetting to the children and that she felt harassed by Father. This is the basis for her modification petition.
Mother testified that on one occasion in November, 2015 she brought the children to the correctional facility and they were denied entry because Father "refused the visit". She further [*2]testified that it is a two (2) hour car ride from her home and she borrows transportation to get there. When asked why she does not allow others to transport the children to see their Father, she testified that the children are too "tormented" already. She would rather be with them and get harassed than send them with someone else.
Mother alleged that during the visits Father pointed at Kadaj's private parts and told her that her body parts belonged to him, which made both children very uncomfortable. Mother further alleged that Father harassed her during the visits by asking her to sit close to him and attempting to touch her.
It was uncontroverted that the children are resistant to physical access with their Father at the correctional facility. Mother advised Father in a letter received in evidence as Petitioner's Exhibit 1 that Kevin was "extremely conflicted about coming to see you" and that he had "an emotional breakdown in class" about it. Mother testified that Kevin's grades have dropped significantly since the visits at the correctional facility commenced.
While the court found Father to be a generally credible witness, Mother was far more credible and reliable and was able to offer more insight into how the access is effecting the children's well-being. It is clear and uncontroverted that the prior order was not followed, but was equally clear that the order itself is problematic and negatively impacting the children.
CONCLUSIONS OF LAW
To sustain a finding of civil contempt based upon a violation of a court order, it is necessary to establish that a lawful court order clearly expressing an unequivocal mandate was in effect and the person alleged to have violated the order had actual knowledge of its terms. Moreover, it must be demonstrated by clear and convincing evidence that there was a willful violation of a prior court order. Furthermore, it must be demonstrated that the violation "defeated, impaired, impeded, or prejudiced the rights of a party." Formosa v. Litt, 91 AD3d 644 (2nd Dept. 2012); see also Judiciary Law § 753; Howell v. Lovell, 103 AD3d 1229 (4th Dept. 2013).
Here, Father met his burden by clear and convincing evidence in seeking to hold Mother in contempt of violating their September, 2015 order. It was established that a lawful court order was in effect and Mother had actual knowledge of its terms. Although it is not necessary that the order actually have been served upon that party, actual notice is an essential predicate to a contempt finding. Labanowski v. Labanowski, 4 AD3d 690 (3rd Dept. 2004) Mother had actual notice as she admitted she was present in Court when the agreement was placed on the record and she later received a written copy of it.
Furthermore, it was demonstrated that the violation defeated, impaired, impeded, or prejudiced Father's rights as he missed significant periods of regular access with the children.
The penalty for civil contempt is limited to a fine and imprisonment, or either (Judiciary Law § 753(A); see also Family Ct. Act § 156; Labanowski v. Labanowski supra). While evidence at trial demonstrated that Mother clearly dishonored the prior court orders, Father's requested relief (enforcement of the order to force Mother's compliance) would not serve the best interests of the children as set forth herein and incarcerating Mother would be a disastrous remedy negatively impacting the children.
This court will implement a fine-type sanction, blended with educational components in an effort to change this family's tragic path. This court finds a spark of possibility exists for this family to mature into an emotionally healthy future. Both parents must cease assigning blame, take accountability for their own mistakes and focus on healing the children's relationship with their Father. The court would submit that their beautiful, bright, tormented children are worth the effort.
Generally, the change in circumstances essential to warrant a modification of a prior order must be shown in some factor affecting the welfare of the child, not the welfare of the parent. A party seeking a change in an established custody or visitation arrangement must show a change in circumstances that reflects a real need for change to ensure the best interests of the child. Horn v. Horn, 74 AD3d 1848 (4th Dept. 2010); Di Fiore v. Scott, 2 AD3d 1417 (4th Dept. 2003); Chrysler v. Fabian, 66 AD3d 1446 (4th Dept. 2009), lv denied 13 NY3d 715 (2010); Ruple v. Harkenreader, 99 AD3d 1085 (3d Dept. 2012).
The court should not change an existing custody arrangement "merely because of changes in marital status, economic circumstances or improvements in moral or psychological adjustment, at least so long as the custodial parent has not been shown to be unfit, or perhaps less fit, to continue as the proper custodian." Horn v. Horn, 74 AD3d 1848 (4th Dept. 2010); Fox v Fox, 177 AD2d 209, 211 (4th Dept. 1992).
In this matter, the parties consented in their prior order that "the expiration of a period of six (6) months from September 29, 2015 shall constitute a substantial change in circumstances allowing either party to re-petition the court to attempt to modify the terms of this order" — essentially dispensing with the burden of having to prove a change in circumstances exists in order for the court to make a best interests inquiry. Nevertheless, the preponderance of the evidence demonstrated a sufficient change in circumstances necessary to make a best interests analysis. Specifically, the marked deterioration of the children's well-being and their clear resistance to physical access with Father in the correctional facility serves as the basis for this court to make inquiry into what would better serve the children's best interests. "[A]an order of visitation cannot be modified unless there has been a sufficient change in circumstances since the entry of the prior order which, if not addressed, would have an adverse effect on the children's best interests". Harder v. Phetteplace, 93 AD3d 1199 (4th Dept. 2012) citing Neeley v Ferris, 63 AD3d 1258, 1259 (4th Dept. 2009) ; Taylor v Fry, 63 AD3d 1217, 1218 (4th Dept. 2009).
The court finds that the children should no longer be forced to comply with a visitation schedule that severely undermines their mental health and strains their relationship with their Father. It does not appear from any of the testimony that the children's mental health has ever [*3]been addressed by a course of outside counseling meant to specifically address the issue of their Father's incarceration.
There is no doubt that the incarceration of a parent is a traumatic event for a child and imposing a mandatory schedule of access that meets the incarcerated parent's needs while neglecting the children's needs makes little sense and in fact has served, in the instant case, to injure the children psychologically.
The court held separate in camera conferences with both children on June 14, 2017. The court found Kevin to be a very sensitive, engaging, bright and charming young man. His sister, Kadaj, was equally bright and charming, but a bit shyer and more reserved. The in camera conferences corroborated the assertion that the children are negatively impacted by the existing order. Moreover, it is clear that they need the intervention of a counselor (beyond a school counselor) to address the trauma of their Father's incarceration. It is well established that a court may direct counseling or therapy, as one of the aspects of a custody or visitation order, if such intervention will serve the [child's] best interests. Gadomski v Gadomski, 256 AD2d 675 (3rd Dept. 1998).
NOW, THEREFORE, the Court having searched the statewide registry of orders of protection, the sex offender registry and the Family Court's child protective records, and having notified the parties and the attorney for the child of the results of these searches; and the Court having considered and relied upon the results of these searches in making this decision it is hereby
ORDERED that Father's Petition for Violation of a Court Order (Docket No. V-06569-15/16A & Docket No. V-06570-15/16A) is hereby granted as follows:
Mother willfully violated an order of this court by denying Father regular access with the children.
As and for her court ordered sanction, Mother shall immediately, no less than fourteen (14) days from the receipt of this order, purchase two copies of the following book - My Daddy Is in Jail: Story, Discussion Guide, and Small Group Activities for Grades K-5 Paperback by Janet M. Bender (Author) (found at www.amazon.com). Additionally, contemporaneously with receipt of this order, Mother shall enroll both children in counseling.
A list of additional books/resources is attached to this decision in the event Mother, the Attorney for the Children or the children's counselor chooses to explore additional resources to help the children.
Upon receipt of the books, Mother shall send one (1) copy of the book to Father at his address for his consideration, and shall keep the other copy of the book for her own consideration.
Mother shall present proof that she completed both of these tasks to the Attorney for the Children on or before July 31, 2017.
For purposes of effectuating this order, the Attorney for the Children's appointment shall continue for a period of six (6) months with authority to restore to calendar should Mother fail to comply with these sanctions.
It is further,
ORDERED that Mother's Petition for Modification of a Prior Court Order (V-00746-00747-00749-07/15F is hereby granted as follows:
Mother shall have an affirmative obligation to notify Father in writing the name and contact information of the children's counselor within fourteen (14) days of enrolling them.
As a component of the within access, both parties shall participate in the children's counseling. It is expressly understood that Father's participation in the children's counseling shall occur via correspondence and/or telephone calls with their counselor.
Father shall have regular communication with the children via the exchange of cards, letters, photographs and telephone calls and any additional access, including physical access as can be agreed and arranged.
Substantial compliance with counseling for a period of six (6) months or successful completion of counseling shall constitute a change in circumstances for either party to seek modification of the within access order.
As a component of the within access, there shall be no disparaging remarks or discussion of court proceedings made in the presence of the child by either party, nor shall they permit any 3rd parties including step-parents or significant others of the parents to do so.
This constitutes the Decision and Order of the Court. Submission of an Order by the Parties is not necessary.
Dated: June 30, 2017
Buffalo, New York.
_________________________________________
HON. MARY G. CARNEY, F.J.C.
PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE ATTORNEY FOR THE CHILD UPON THE APPELLANT, WHICHEVER IS EARLIEST.
Check applicable box:
Order mailed on June 30, 2017 to:
RACHEL KATHARINE MARRERO, ESQ.
TARA ANNE MIDLIK, ESQ.
JOSEPH CHARLES BANIA, ESQ.
KERRY-ANN FAIRCLOUGH
KEVIN J. DAVIS II
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