Matter of Ryan P. v Nakita S.

[*1] Matter of Ryan P. v Nakita S. 2008 NY Slip Op 50953(U) [19 Misc 3d 1130(A)] Decided on March 12, 2008 Family Court, Kings County O'Shea, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 12, 2008
Family Court, Kings County

In the Matter of a Proceeding Pursuant to Article 6 of the Family Court Act Ryan P., Petitioner,

against

Nakita S., Respondent.



V-28622-02



Counsel for petitioner: Rick Stein, Esq. Counsel for respondent: Robert E. Nicholson, Esq. Counsel for the child: Tosha Foster, Esq.

Ann Elizabeth O'Shea, J.

This matter is before the Court on the cross-petitions of Ryan P., the child's father, and Nakita S., the child's mother for custody of their son, Ryan, born in August, 2000. The mother also petitioned for modification of a continuing temporary order, in place since September of 2003, which granted the father weekly parenting time with his son from Thursday through Sunday evening. The mother's modification petition is essentially a petition for an order permitting her to relocate with the child to Orlando, Florida, which would drastically alter the amount and nature of the time Ryan spends with his father.

A trial commenced on December 2, 2005, and concluded on November 1, 2007. The mother, her mother Lita S., and the mother's current husband, Teddy V., testified in support of the mother's petitions. The father, his sister, Shauna P., his mother, Esther P., his cousins, Alona and Tiffany R., his former landlady, Ingrid W., his neighbor, Al W., and his friend, Steve Y., all testified in support of the father's petitions. In addition, psychologist Bennett Pologe, Ph.D., performed a forensic evaluation as well as two subsequent updated evaluations and submitted three forensic reports, which were entered into evidence without objection. Dr. Pologe also testified at trial.

Having reviewed the evidence and had an opportunity to assess the credibility of the witnesses and having considered the recommendations of Dr. Pologe and the Law Guardian, I find that it is in Ryan's best interest that the mother's custody and relocation petitions be denied, that the father be granted sole custody of Ryan and, if the mother remains in New York, the parties share, as much as possible, equal physical custody of Ryan in much the same manner as they have for the last five years. The reasons for my decision follow.

The LAW

The guiding principle in this, as in any custody case, is the best interests of the child (see Eschbach v Eschbach, 56 NY2d 167, 171[1982]; Faunteleroy v Mercado 5 AD2d 482, 482-83 [2d [*2]Dept. 2004]), which must be ascertained in light of the "totality of the circumstances" (Bains v Bains, 303 AD2d 557, 558 [2d Dept. 2003]). Relocation petitions are governed by the same best-interest principles considered within the context of a geographical separation of the child from one of his parents. In Tropea v Tropea, 87 NY2d 727 (1996), the Court of Appeals rejected the notion that relocation petitions could or should be decided on the basis of static formulae or presumptions and held that "each relocation request must be considered on its own merits with due consideration of all the relevant facts and circumstances and with predominant emphasis being placed on what outcome is most likely to serve the best interests of the child" (id. at 739). The Court emphasized that, although the parents' rights were important considerations, "it is the rights and needs of the children that must be accorded the greatest weight, since they are the innocent victims" of their parents' decision to go their separate ways [FN1] "and the least equipped to handle the stresses of the changing family situation" (id. at 739).

In determining whether a parent should be permitted to relocate with the child, the court must balance the reasons for the proposed move and the benefits that might accrue to the child as a result of the relocation against the impact of the move on the child's relationships with the parent and other family members who will be left behind. The quantity and quality of the time the noncustodial parent and child spend with each other under the existing circumstances must be measured against the amount and nature of their time together that will be possible and practical if the relocation occurs (see Tropea, 87 NY2d at 739; Matter of Ganzenmuller v. Rivera, 2007 NY Slip Op 4119, 2 [2d Dept. 2007]). The child's ties to his existing community and the opportunities that are currently available to him should be weighed against opportunities that may or may not be available to him if the move is permitted (see Matter of Friedman v. Rome, 2007 NY Slip Op 9775, 2 [2d Dept. 2007]). The significance of the reasons for the move for example, economic or medical necessity, the opportunities for the custodial parent to improve his or her financial circumstances and the quality of the child's life, or simply the custodial parent's preferences for one location over another must be considered relative to the reasons arguing against the move, including, first and foremost, the disruption of the child's contact with the noncustodial parent. The relative involvement of each parent in the child's day-to-day life, as well as the noncustodial parent's interest, ability, and willingness to assume full custody of the child if the relocation is denied are additional factors to be considered. Whatever the circumstances, it is the petitioning parent's burden to prove, by a preponderance of the evidence, that on balance and in light of all of the facts, the proposed relocation is in the child's best interests (e.g., Matter of Jones v. Tarnawa, 2006 NY Slip Op 898 [4th Dept. 2006]).

The FACTS

After Ryan was born, the parties and Ryan lived together first with the father's aunt, from September 2000, to just before Thanksgiving 2000, and then with the father's mother at Carroll Street in Brooklyn, where they remained until January or February 2001 when Ryan was about six months old. The father worked, but the mother remained at home. According to the father's mother, Esther P, his sister Shauna P, and his cousins Alona and Tiffany R., each of whom lived [*3]with the parties and Ryan during that period, the mother did little or nothing to care for Ryan during his early infancy, leaving his care to the father and whichever of his relatives might be home or a babysitter when paternal family members were not available. Before he left for work in the morning and when he returned in the evening, the father, along with his members of his family, took care of Ryan, while the mother went out at night three to four times a week, frequently not returning until 2:00 or 3:00 in the morning, often intoxicated. The mother's conduct and her abdication of childcare responsibilities to others caused resentment and discord in the paternal grandmother's home. Although the father and Esther and Shauna P. spoke with the mother about her failure to take care of Ryan and the burdens that placed on other family members, as well as her frequent disappearances at night, the mother's behavior did not change during the time the parties lived in Esther P's home.

The testimony was contradictory as to where the parties and Ryan lived between January or February 2001, and January 24, 2003, when the mother secured a writ requiring that Ryan be turned over to her because the father was "not the legal father." There is general agreement that the mother left Esther P's home and moved in with her mother in January or February 2001. The father, his sister, and his mother contended that the mother left Ryan with him. The mother testified that she took Ryan with her. She also testified that the father lived with her and her mother and Ryan for a few months in 2001, until Lita S. demanded he leave. According to the mother, Ryan has continued living with her and her mother ever since 2001, although she acknowledged that the father had Ryan with him "often for weeks at a time." Lita S. insisted that Ryan lived with her from the moment he left the hospital after his birth and has never lived anywhere else, an assertion that even her daughter disputed. According to Esther P, Ryan lived with her consistently until he was about 2-1/2, when the mother secured the writ in January 2003. The father's one-time landlady Ingrid W. testified that the father and Ryan were her tenants at 4493 Kings Highway for nine months between March 2002, until December 2002.

Culling the truth from these very divergent accounts is virtually impossible, but the reality is probably that Ryan lived part of the time with his father and part with his mother between early 2001 until January 2003, when these proceedings commenced.[FN2] Pursuant to continuing court orders, the father and the mother have essentially equally divided physical custody of Ryan since June 2003, with the father having him from Thursday after school until Sunday night and the mother having him from Sunday night to Thursday morning when school begins. The mother acknowledged that since a temporary order of visitation was first awarded to the father in March 2003, there have been "no gaps" in the father's exercising his visitation rights.

Except for brief periods, the father has been gainfully employed since Ryan was born. Except for a short stint as a Nathan's employee, the mother has not held a job since Ryan was born, even though she is a certified phlebotomy technician. According to the mother, she has not looked for a job in her field because "it would be a long process to get a job." Instead, she has relied on her mother and husband to support her.

For the first half of each week, Ryan lives with the mother and Lita S., in Lita S.'s home [in] Brooklyn. The only testimony concerning the maternal grandmother's home was that it was in a [*4]neighborhood where shootings occur. There was virtually no testimony concerning Ryan's life with his mother and maternal grandmother, day-to-day. The second half of the week, Ryan lives with his father [in] Brooklyn, where Ryan has his own room. The mother acknowledged that Ryan and his father are able to go out at night in his neighborhood. On weekends, Ryan spends a great deal of time among various of his paternal relatives. All witnesses were consistent in their testimony that the father was an involved parent and good father.

Both the father and the mother have extended families in and around Brooklyn. The mother acknowledged that Ryan has close and ongoing relationships not only with his father but also with members of his paternal family. Esther P. and Shauna testified that they and other family members spend at least part of every weekend with Ryan. The father's extended family including his mother and grandmother, his sister, his aunts, uncles, and numerous cousins gathers regularly to celebrate family birthdays and anniversaries as well as holidays and other special occasions. Ryan has been a part of these celebrations his whole life. The mother conceded that the members of the father's family have always been involved in Ryan's life and that Ryan would miss out on significant events in their lives if he moved to Florida. Ryan also has connections with his mother's family, which includes not only his grandmother, Lita S, with whom he currently lives half of every week, but also the mother's two brothers and cousins who live in New York. Ryan told the forensic evaluator, Dr. Pologe and me that he would be very sad and would miss his New York families if he was unable to see them regularly.

Although the mother's husband, Teddy V., has some family members in Florida, the mother and the father have none. While Lita S. testified that she would regularly travel to Florida to see her grandson, Esther and Shauna P. and Alona and Tiffany R. stated that their work, school, and/or finances would make it impossible for them to do so. They each also testified that they would miss Ryan terribly if he moved to Florida.

The father and the mother both expressed relative satisfaction with Ryan's school and testified that he is doing well. It is worth noting that, while the father testified that he helps Ryan with his homework and that he regularly speaks to his teachers, the mother said nothing at all about her involvement in Ryan's education. The father also testified that if he is given custody, Ryan will continue to go to the same school he now attends.

The mother cited six reasons for her wish to relocate with Ryan to Florida: (1) her husband, Teddy V., lives and works there, having moved from Brooklyn in 2005 while these proceedings were pending; (2) the climate is better; (3) the neighborhood is better in Florida than where she lives in Brooklyn; (4) housing is better and less expensive there than in New York City; (5) the schools are better; and (6) she would find employment in Florida.

CONCLUSIONS

Although the mother's desire to relocate to be with her husband, Mr. V., is a valid motive, the mother fails to demonstrate that her reasons for wanting to relocate justify the uprooting of Ryan from the only place he has ever known, where he is doing well academically and socially, and where a relocation would qualitatively and quantitatively diminish his relationship with his father and members of both his maternal and paternal extended families (see, e.g., Matter of Friedman v. Rome, 2007 NY Slip Op 9775, 2 [2d Dept 2007]; Huston v. Jones, 252 AD2d 502, 503 [2d Dept 1998]; see also Sawyer v. Sawyer, 171 Misc 2d 870, 873 [Sup. Ct. Erie Co. 1997], aff'd, 242 AD2d 969, 972 [4th Dept 1997]; Stearns v. Baxter, 171 Misc 2d 398, 401 [Fam. Ct. Ulster Co 1997], aff'd, 248 AD2d 794 [3d Dept 1998]). [*5]

The mother produced no evidence to support her contention that the Orlando neighborhood is better or safer than the neighborhood in Brooklyn where she currently lives. Even if that were so, there are neighborhoods in New York City that are safe for example, no one has raised any safety concerns about the father's neighborhood. Yet, the mother has made no effort to locate a more acceptable neighborhood for Ryan in New York City that would not result in shattering Ryan's established life and relationship with his father as a move to Florida certainly would.

Similarly, the mother produced no evidence to support her assertion that the school Ryan might attend in Florida was in any way better than the school he currently attends and in which he admittedly is doing well. She identified Pine Hills School in Orlando as the school Ryan would most likely attend, but she had not visited it, had not researched its curriculum, how many children were in each class, what its educational philosophy was or anything else about the school. The only thing she seems to know about it is that it is a "B" school a term she did not explain.

No evidence was presented that the mother's or Mr. V.'s employment opportunities are greater in Florida than in New York and its environs. As noted, the mother is a certified phlebotomy technician. Although she completed her training at least two years ago, she has not looked for employment here or in Florida. While she believes that she could get a job in Orlando, "because there are a lot of hospitals in Orlando," there is no reason to think she could not find comparable or better employment opportunities in her field in one of the many hospitals or doctors' offices in New York if she but looked.

Mr. V. is employed as a truck driver in Florida [FN3] and, at the time of his testimony, he was earning $9.35 per hour with an expectation that he would earn $12.75 per hour when he completed his training. However, Mr. V. never investigated the availability of similar employment or what it would pay in New York City or its environs.

The mother and Mr. V. agreed that he should move to Florida and find employment while this case was pending, apparently with the expectation that the case would be over soon and that she would be granted custody and given permission to relocate. Acting under that assumption, the mother did not seek employment or better housing or a safer neighborhood or a better school in New York. Instead, the mother sought the Court's approval to sever the close relationship between Ryan and his father and his extended families and separate him from the community in which he has grown up.

Taken singly or together, Ms. S's reasons for her decision to move to Florida a determination obviously driven far more by personal preference than financial or family considerations and the unproven benefits, if any, Ryan might get from such a move do not outweigh the loss he would suffer from the severance of his weekly time with his father or disconnection from his extended family. No amount of additional or extended summertime visits between the father and Ryan could make up for the loss of the physical and emotional connection with his father gained through the years of shared physical custody, particularly since Ryan already spends half of his summers and holidays and school breaks and weeks with his father. Ryan's separation from his grandmothers, aunts, uncles, and cousins who have been so involved in his life could not be compensated for by better climate, nicer and cheaper living accommodations or better schools, even if the mother had proven that such conditions existed in Florida, which she did not. [*6]Given the long history of cooperative shared parenting, the determination by the mother to relocate is ill-advised and shows little insight into the consequences for Ryan (see Sara P. v. Richard T., 175 Misc 2d 988, 993 [Fam Ct. Monroe Co 1998]).

Dr. Pologe's recommendation that the mother be awarded custody is puzzling. In his evaluation of the mother with Ryan, Dr. Pologe observed her to be "distant," "defensive," and "sulking," noting that she did not interact much with Ryan and, indeed ignored his instructions to interact with her child. In contrast, Dr. Pologe acknowledged that the father "displayed some appropriate and loving behavior" toward Ryan and "a good balance between joining his play . . . and trying . . .to structure the play and make it educational." Nonetheless, Dr. Pologe found the father to be irresponsible, a view that was based on the father's failure to keep or show up on time for his appointments and on his apparent failure to pay his portion of Dr. Pologe's fee in a timely manner. Dr. Pologe found the father's apologies for these and other failings to be insincere, preferring the mother's "chaotic" failure to make and keep her appointments and her unapologetic defensiveness. Although Dr. Pologe placed great emphasis on the father's arrest in 2001 or 2002 when he hit and broke a bank window during an argument with the mother (for which he reportedly paid a fine), he was surprisingly unconcerned about the mother's guilty plea to arson, for which she was placed for five years on probation.

Much of Dr. Pologe's report and testimony was given over to his assessment of which of the parties he believed was telling the truth. His conclusion that the mother should be awarded custody was based primarily on the fact that he found her to be the more credible of the two. In doing so, Dr. Pologe strayed from his role as forensic evaluator and into the Court's domain as the finder of fact and assessor of credibility.

In his final evaluation, which was intended to specifically address the impact on Ryan of the mother's proposed relocation, Dr. Pologe found the father's expression to him and to Ryan that he would be terribly sad and distressed if his son was taken away from him to be "self-involved." Dr. Pologe was also critical of the father's reportedly telling Ryan that he did not want him to go to Florida, that they would not be able to see each other as much as they have, and that he would be very sad if Ryan moved away. Although it is certainly possible that the father spoke to Ryan too often or put inappropriate pressure on him about the proposed move to Florida, there is no admissible evidence that he did so. Assuming Dr. Pologe accurately reported what the father and Ryan told him, the father's statements to Ryan, taken at face value, seem entirely appropriate and honest. Certainly, it is important that Ryan knows that his father would miss him if he moved to Florida, that his father does not want him to go, and that they would not be able to spend the same time together if he did move. The last message is fact. To suggest otherwise would be fundamentally dishonest and damaging to Ryan's trust.

While Dr. Pologe found the father's opposition to the mother's proposed relocation to be "self-involved" and focused on his own emotions and needs, he found nothing disconcerting about the mother's decision to uproot Ryan and take him away from his father and all the people who know and love him, a decision that is quintessentially self-involved particularly since the proposed relocation is prompted primarily by her and her husband's preferences for Florida's weather and purportedly nicer surroundings. Dr. Pologe never questioned the mother about her reasons for seeking to relocate or inquire about what Ryan's life would be like in Florida, apparently simply assuming that his life would be better there than here even if it meant his contact with his father would be substantially reduced. [*7]

Dr. Pologe acknowledged that a child's loss of a strong attachment can cause problems later in life. Nonetheless, despite all the evidence to the contrary, including the mother's own description of Ryan's close relationship with his father, Dr. Pologe dismissed the notion that the move to Florida would have any significant or lasting impact on Ryan, stating only that "every life has loss in it; [you] can't avoid it [and], yes, it is harder for a child to deal with it than an adult."

The court is not required to accept the psychologist's conclusions or recommendations (see e.g. Bruno v. Bruno, 2008 NY Slip Op 82 [2d Dep't 2008]). Because Dr. Pologe's evaluation and conclusion are inappropriately based on his skewed assessment of which of the parties is more believable, as well as factual findings that are not supported by the evidence, and because Dr. Pologe ignored or discounted the extent and depth of Ryan's relationship with his father and his New York families as well as the impact the relocation might have on Ryan, I decline to follow his recommendation. I also decline to follow the Law Guardian's recommendation as it appears to have been prompted by Ryan's last expression of his desires which, understandably, have fluctuated over the course of the litigation.

For the foregoing reasons, the mother's relocation petition is denied. The mother's custody petition is also denied, and the father's petition for custody is granted. Since the time of Ryan's birth, the father has been as much Ryan's care giver as has the mother possibly more and he is well able to provide the guidance and nurturing that Ryan requires. The father presented as more empathetic of Ryan's emotional need to be with both of his parents than the mother and better able to provide him with the comfort and strength he will need to adjust to the new custodial arrangement if the mother does relocate to Florida. The court also finds that the father is far more committed to insuring that Ryan will have maximum contact and extended visitation with his mother, should she decide to move to Florida, than the mother was in fostering Ryan's relationship with his father when she sought to relocate in the first place. Finally, Ryan will remain in the same school and community where he currently is doing well, and will be emotionally supported by the extended family in whose care he has been since the day he was born.

If the mother elects to remain in New York, residential custody of Ryan shall be shared in the same manner as it is now. As much as is practicable, the father is encouraged to include the mother in all major decisions concerning Ryan's health, education and welfare. If the mother elects to move to Florida, visitation shall include half of the school vacation surrounding Christmas, all of the Spring break or President's Week break, and at least half the summer as well as such other visitation as the parties may agree. Travel costs shall be shared equally by the parties.

This constitutes the decision and order of this Court.

March 12, 2008_______________________________

Ann Elizabeth O'Shea, A.J.S.C. Footnotes

Footnote 1:In Tropea, the petitioning parent had been awarded sole legal custody of the subject child as part of a judgment of divorce. Here, legal custody has not been awarded to either parent and neither parent can claim a superior right to make decisions about the circumstances of Ryan's life.

Footnote 2:The father petitioned for custody three times in 2002. The first two petitions were dismissed. The father was not adjudicated the father of Ryan until March of 2003. The mother filed her petition for custody in January 2003.

Footnote 3:The mother apparently believes her husband is a construction worker, an assertion that Mr. V. denied.