Graves v Tyler

[*1] Graves v Tyler 2010 NY Slip Op 50721(U) [27 Misc 3d 1213(A)] Decided on January 29, 2010 Supreme Court, Bronx County Kiesel, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 29, 2010
Supreme Court, Bronx County

Bayyinah Graves, Petitioner.

against

Herbert G. Tyler, Respondent.



206/04



Elizabeth Sabet, Esquire for Bayyinah Graves

Safe Horizon Domestic Violence Law Project

210 Joralemon Street, Room 608

Brooklyn, NY 11201

Elizabeth Posse, Esquire- Attorney for the subject child

930 Grand Concourse, Suite 1B,

Bronx, NY 10451

Adam M. Brown, Esquire for Herbert G. Tyler

180 E. 162 Street Suite 1F

Bronx, NY 10451

Diane Kiesel, J.

The petitioner mother, Bayinnah Graves, seeks an order of protection on behalf of herself and the son she has in common with the respondent father, Herbert Tyler. She also seeks to permanently suspend court-ordered visitation between the two. She alleges the father is physically and emotionally abusive to her and her child. Her application is supported by the attorney for the child.

Like many non-custodial fathers, Mr. Tyler was awarded parenting time with his son, S., now 12 years old, on alternative weekends.[FN1] An Order to that effect, was issued on consent of the [*2]parties on February 27, 2008. The arrangement became the subject of dispute during Christmas of 2008 when the father allegedly became upset because visitation interfered with his lucrative holiday sales season as a street vendor. When the child balked at spending the visit on the cold street selling merchandise, the father allegedly struck him and cursed at him. In addition, the father allegedly threatened to kill the child and the child's mother.

Each of the parties testified at the trial of these matters, as did S. An eyewitness to some of the events at issue also testified. Under a prior agreement with the parents, after consultation with their attorneys and with the consent of the law guardian, S. testified in open court, subject to cross examination. The parents agreed not to be present during their child's testimony. The Court finds that S. testified credibly and demonstrated an impressive level of maturity. He is articulate and obviously intelligent. He estimated he last saw his father sometime in November 2008 during the pre-Christmas shopping season, although his mother testified the actual date of her child's last visit with his father was December 12, 2008. Suffice to say the only factor of importance regarding the date is that it was close enough to Christmas that the father wanted to spend his parenting time on the street selling perfume and other goods to capitalize on the holiday shopping season.

This particular visit got off to a bad start for reasons having nothing to do with Christmas. The parents were confused about the visitation schedule and the father was under the impression he was not going to see his son on the weekend in question. The mother - who testified credibly - said the father rarely wanted to spend time with his son no matter what weekend it was, and that he often complained he did not have enough money to take care of the child during court-ordered visits. On December 12, 2008 the mother was informed by S. via the child's cell phone that his father had failed to pick him up from school for a visit and the child was waiting alone there. The mother telephoned the father and insisted he pick up S. and take him for the weekend. "He got upset with me again, very nasty . . . he told me that he was having a difficult time and [a] hard time and can't take the time to get him." However, by the conclusion of the parties' telephone conversation, they reached an agreement the father would retrieve his son.

Mr. Tyler maintained throughout his testimony that while he may have been somewhat perturbed at the situation as it developed that day, he loved his son, wanted to be with him and that his son enjoyed the experience of working alongside him. This Court finds Mr. Tyler's testimony was only partially credible. Although he sought to place his behavior in the best possible light, what he primarily succeeded in doing was confirming and in some instances, bolstering, the case against him.

For example, the child testified that from the moment his father picked him up "he started cursing . . . he got mad at me for no reason and just punched me in my arm." The father admitted to being "very upset," when he met his child at the school. "I told him he should have been more responsible . . . I was very upset with him, but it really wasn't directed to him. It was directed at the situation." Despite the father's claim to the contrary, his anger was directed at the child, in that S. was the only person there. In addition, it is not clear why the father blamed the [*3]child's lack of responsibility for the mix-up in visitation when it clearly caused by confusion on the part of the parents.

The father adamantly denied striking the child at the subway or anyplace else that day, but continued throughout his testimony to say he was "perturbed" about the situation and in a rush to get back to his lucrative street corner. Mr. Tyler further admitted to having physical contact with the child. "I grabbed him when we were at the 104th Street train station. And the reason why was because we were rushing, and I was like, hurry up, hurry up, hurry up. . . . I said, Yo, man, you got to keep up, you got to keep up with Daddy.'" Given the father's admitted state of mind at the time, the child's testimony seems more reliable on this point. And, even if the father did not actually strike S., clearly the "grabbing" was not gentle, based on the father's admissions about his mood.

From the train station, the pair proceeded to a cold street corner to sell merchandise from approximately five to seven o'clock in the evening, even though the child had been in school all day and was exhausted. This was confirmed by the testimony of Thomas Campbell, known as "Don," who is a long-time sales associate and friend of the father's. Despite that relationship Mr. Campbell also - perhaps somewhat inadvertently - supported the case against his colleague and friend. When asked to describe S. that day, Campbell replied that he looked as he usually did, "a little bit tired from school, wanting something to eat. That was about it."

Despite the child's apparent physical condition, there was no indication from any of the testimony the child's need for food or rest was addressed. Instead, the father testified they got off the train at 33rd Street, met up with Mr. Campbell and immediately positioned themselves across from Macy's department store to peddle perfume. When asked what became of his son, Mr. Tyler replied: "That particular day I was a little perturbed, so I told S. to just step back. I just told him, just step back and try to stay out of the way."

It was not the first time S. had spent his visitation time with his father on the street selling goods, and while the father testified the child enjoyed it, the child maintained otherwise. Moreover, based on the child's description of street vending, it is not surprising he did not like it. The selling days were long - often from 9 a.m. to 7 p.m. The child had no playmates his own age. Unless he happened to be eating in a nearby fast food outlet, he was limited to urinating in a nearby alley because there were no available bathrooms. The child had no place to sit on the street and went for long stretches without eating. S. said they often spent their weekends like this which left him "kind of nervous and always tired and [I] wanted to do something else." The child said he was too afraid to tell his father he did not like street selling because his father would yell, curse and call him a "mother fucker" and "a punk."

The father adamantly denied cursing at his son, but admitted he "raised" his voice "in an authoritative voice which is like a command voice, almost like when a court officer said, sit down,' you know back up.'" When asked by the child' s attorney whether he ever noticed this "command voice" making his son nervous, the father replied: "Well, I know when I raised my [*4]voice at different times, you know, he might have seemed a little, maybe, nervous." Yet this observation did not cause the father to stop doing it.

In addition, the father acknowledged the child might have heard him use words like "mother fucker" and "punk" but insisted those were comments he made to his street-selling colleagues who banter with each other using such language. "It's more a phrase to my so-called colleagues or peers. S. might have heard something like that." The father also insisted he never referred to his son as "weak." Yet on cross examination, he admitted he said something to the effect: "not that he was actually weak, but he should work out to become strong," which Mr. Tyler thought the child might have "mistook" for being derided as weak.

S. further maintained that during visits with his father Mr. Tyler constantly called his mother a "bitch," and expounded that he never should have fathered S. In addition on the day at issue, S. said the father threatened to kill S., his younger half-brother and Ms. Graves. Specifically, Mr. Tyler is alleged to have said: "I wish you three were dead. One day I'm going to kill you guys." These statements frightened the child and considerably dampened his desire to spend time with his father. Again, the father denied making these statements "in his presence." But, he added: "I get really upset with her, some of the things she does to me. . . . I feel she manipulates him in a lot of ways, and she doesn't make things easy for me at all."

Although the child admitted there had been occasions when father and son have engaged in other activities besides street sales (for example, they once went to Great Adventure and on another occasion, to a Knicks game), he complained his father was short-tempered and would quickly get angry at some small incident - such as when they played basketball together and S. missed a shot - which would ruin all the fun. Moreover, the child said the father constantly smoked marijuana in his presence.

On December 12, 2008, after being hit or grabbed, forced to stand outside on the cold street corner while his father and Mr. Campbell sold goods, and then either being cursed at or spoken to forcefully, S. was embarrassed and scared. He sent a text message to his mother to tell her this. As a result, the mother telephoned the father, who again verbally abused her. "He started yelling at me, screaming, and cursing me. He just kept saying over and over again, I fucking told you that I didn't have the time to take care of him,'" Ms. Graves testified.

The parents argued over the cell phone about whether the mother should come to Manhattan to retrieve her son. "At the end of the conversation the father said, You want to get him, come get this punk mother fucker,'" which she did. Following that exchange, Mr. Tyler packed up his items for sale and took off, leaving the child in the dark, crying, until his mother arrived some 20 minutes later. The father, S., and Mr. Campbell all confirmed the father left his son prior to the arrival of the child's mother. Mr. Campbell remained with the child until his mother came. Although the child was familiar with him, the mother had no idea who he was. The father justified leaving the child with his colleague "because I didn't want to have no contact with her, because every time we deal with one another, it becomes very volatile, and usually I'm [*5]on the losing end of it." Mr. Campbell said he took the child to Starbucks and bought him a hot chocolate while they waited for his mother to arrive.

After this visit, the mother came to family court to seek an order of protection on behalf of herself and her son and to have visits suspended. She said that throughout their long relationship, Mr. Tyler had assaulted, threatened and harassed her. She said she is constantly nervous and looking over her shoulder for the unwanted appearance of Mr. Tyler. She testified that she also feared the father is "going to retaliate" against his son because his son has testified against him, or might even retaliate "for no reason." She confirmed her child's testimony that he is fearful of his father. Ms. Graves did testify, however, that regardless of past events, and absent this latest altercation over the Christmas 2008 visit, it had been several years since Mr. Tyler threatened her. He has abided by the Order of Protection that has been issued during the pendency of this case.

S. was adamant on the witness stand that he wanted nothing more to do with his father who scared and intimidated him. He rejected the idea of seeing the father in the presence of a supervisor because the prospect of visits under any circumstances made him nervous.His mother testified that S. is far more relaxed and happy since he has not had visits with his father. The father insists the mother is encouraging the child to turn against him. In addition, the father said he was sick and tired of coming to court regarding visitation with his son and appeared to have no interest in supervised visits either.

Family Offense Petition.

To prevail in a family offense proceeding the petitioner must prove by a fair preponderance of the evidence that she and the respondent have a relationship that is covered by the Family Court Act and that the respondent has committed one or more of several enumerated family offenses. FCA § 832; Cruz v. Cruz, 55 A.D. 3rd 992, 995 (3rd Dept. 2008); FCA § 812(1) & (1)(a). Here, the petitioner has proven the father harassed as well as threatened her and her son.

Specifically, this Court credits the son's testimony that on the date at issue, his father struck him because he could not control his anger at having to keep the child on a weekend he clearly did not want him around. And even if the Court were to conclude the child was exaggerating the physical contact his father engaged in, the father himself admitted to shoving the child. When a person "strikes, shoves . . . or otherwise subjects (another person), or attempts or threatens to do the same . . . ." he engages in the family offense of harassment. See FCA § 812 (1); Pen. Law § 240.26 (1). In addition, the father also engaged in threatening behavior when he threatened death to S., his half-brother and his mother, which rises to the level of the family offense of disorderly conduct. See FCA§ 812(1); Pen. Law § 240.20(1).

The mother is seeking a five-year order of protection, arguing that aggravating circumstances pursuant to FCA § 827 (vii) exist. Her lawyer asked that the Court incorporate [*6]the testimony of the fact-finding phase of the family offense proceeding into the dispositional hearing. Attorneys for the father and son agreed. Ms. Graves asserts that aggravating circumstances exist because of the lengthy history of domestic violence between the parties, the father's drug abuse in that S. said he observed him smoking marijuana and the fact the violence took place in the presence of the child. Counsel for the child asked the Court to impose only a one-year Order of Protection for her client and his mother, without any explanation as to why she thought that length of time was appropriate. The father asserts the mother has failed to meet her burden of proof and should not be awarded any protective order.

The mother and her son are awarded a two-year final Order of Protection for the following reasons: First, the mother acknowledged that prior to this incident the father had not engaged in assaultive, threatening or harassing behavior for many years. She did not indicate that she had suffered any physical injuries due to past assaults. In addition, since the inception of this case, the father has abided by the Court's directive to stay away from the mother and his son. In addition, the father's conduct here caused no physical injury. A two-year order in favor of Ms. Graves and her son is sufficient to provide the protection the parties seek. The respondent is directed to stay away from Ms. Graves and her son, their home, her place of business if she has one, and their son's school. Mr. Tyler is to refrain from any telephone calls, mail or electronic communication to the petitioner or their child and is not to engage anyone else to do so on his behalf. His right to possess a firearm is revoked for the term of this order.

Modification of Visitation.

Custody and visitation decisions are guided by what is in the best interest of the subject child. Eschbach v. Eschbach, 56 NY2d 167 (1982); Friederwitzer v. Friederwitzer, 55 NY2d 89 (1982). A non-custodial parent, such as Mr. Tyler, is entitled to reasonable rights of visitation and denial of those rights must be based on substantial evidence visits would be detrimental to the child. Janousek v. Janousek, 108 AD2d 782, 784 (2d Dept. 1985).

The factors to be considered in determining whether continued visits between S. and his father continue to be in S.'s best interest are the same as the factors that govern in custody awards, including but not limited to: the quality of the environment the father places the child in during the visits; the guidance and example the father sets for the child and the emotional and intellectual stimulation the father offers. Eschbach, 56 NY2d at 172-73. Although not determinative, certainly the child's wishes must also be taken into consideration, particularly if the child demonstrates sufficient intelligence and maturity to be able to cogently express them. Eschbach, 56 NY2d at 173; Schouten v. Schouten, 155 AD2d 461, 463 (2d Dept. 1989); Robert P. v. Ana L., 75 Misc 2d 576 (Kings Co. Family Ct. 1973).

Finally, the Court always must weigh seriously the presence of proven domestic violence prior to entering any custody or visitation order. Wissink v. Wissink, 301 AD2d 36 (2d Dept. 2002).In considering all the appropriate factors, it is clearly no longer in the best interest of S. to be under judicial order to visit his father. First, the father has engaged in proven acts of domestic [*7]violence against both the mother of his son and his son. These acts deem it necessary for the father to be subject to a two-year Order of Protection against him in their favor. Although the child suffered no physical harm from the incident discussed here, he testified that his father's behavior made him nervous and upset, thereby harming him emotionally. His mother confirmed this. In addition, he made a threat against the child's mother and caused her to be afraid of him.

Moreover, the father hardly provided appropriate guidance for his son's current interaction with his own mother, and his future interaction with women in that he continued to speak negatively about Ms. Graves in the child's presence. Such disrespect is not an appropriate message to send an impressionable boy approaching adolescence.

Further, while barely 12 when he testified, S. nonetheless gave intelligent, articulate and mature testimony when he expressed his lack of interest in visiting with his father. His reasons were not trivial - for example, he did not say he father does not let him play enough video games, eat enough candy or watch enough television when they are together. Instead, he said he was frightened by his father's physical and verbal bullying and embarrassed by his crude and threatening language. The son claims the father hit him and called him a "punk ass motherfucker." He also said the father threatened his mother, his half-brother and himself. These are serious grievances. And while the father denied calling his son a "punk ass motherfucker," the record suggests otherwise. Both the mother and child testified to hearing that same abusive, foul language towards them by the father and the father himself admitted using exactly those words towards co-workers. At the very least, the father certainly does not set a proper example for his pre-adolescent son by using such crude language.

Perhaps most alarming is the dismal judgment the father displayed by abandoning his son on a street corner during the holiday shopping season because he did not want to face the child's mother. In clearly casting aside the child's best interests to ease his own distress, he potentially placed S. in harm's way. The street across from a major midtown Manhattan department store during the holiday season is a crowded one. A child left there without parental supervision could have been accidentally pushed and knocked over. Worse yet, with no father to protect him, he could have been the victim of any one of a myriad of horrible criminal acts. Luckily, Mr. Campbell, a biological stranger to the boy, stepped up to be a man and watch out for the child, in a way his own father refused to do. Accordingly, the previously-entered visitation order is suspended. This constitutes the decision and order of this Court.

Dated: January 29, 2010

Bronx, New York

____________________________________

Diane Kiesel, Acting Justice, Supreme Court Footnotes

Footnote 1:The child will be referred to as "S." in this Decision and Order to protect his privacy.