Elissa N. v Ian B.

[*1] Elissa N. v Ian B. 2011 NY Slip Op 51339(U) Decided on April 7, 2011 Family Court, Monroe County Nesser, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 7, 2011
Family Court, Monroe County

Elissa N. n/k/a/ P., Petitioner,

against

Ian B., Respondent.



V

 

APPEARANCES:

Matthew Jason Mix, Esq.

Attorney for Petitioner

Tamara Foote Casey, Esq.

Attorney for Respondent

Kathleen Lynd Perrault, Esq.

Attorney for the children

Joseph G. Nesser, J.

DECISION

Elissa N. n/k/a/ P., hereinafter referred to as Mother, and Ian B., hereinafter referred to as Father, are the parents of two children, Ian B. d.o.b. November 14, 2004 and Daniel B. d.o.b. March 8, 2007, hereinafter referred to as children, the issue of their marital union. There was a Separation Agreement dated April 30, 2009, which was admitted into evidence and allowed for shared custody of the children on an equal basis. Subsequently, the parties entered into a Consent Order dated October 6, 2009, which was admitted into evidence and allowed for joint custody with primary residence to Mother and rights of visitation to Father on alternate weekends from Friday to Sunday and two week nights. In addition, the parties agreed that neither would permanently relocate with the children outside of Monroe County or the surrounding Counties without the expressed written consent of the other party or further Order of a Court of competent [*2]jurisdiction.

On May 20, 2010, Mother filed a Relocation Petition requesting that she be permitted to permanently relocate with the children to the State of Texas, which she withdrew on December 23, 2010. On June 1, 2010, Father filed a Custody Modification Petition. Father alleged that Mother interfered with his visitation, that Mother and the children traveled to Texas and did not tell the Father, that Mother neglected the children in various ways and requested custody of the children. The Court found both personal and subject matter jurisdiction and conducted a protracted trial with many witnesses and exhibits.

FINDINGS OF FACT

The first witness to testify was Zane B., Father's brother, whose testimony the Court found to be honest and credible.

Mr. B. testified that Father lived in Williamson, New York continuously since November of 2008 to present. Father's current residence is a seven bedroom house which Father lives in with his girlfriend, Micolette L., her parents, her three children and Father's children. He testified that the condition of the house was good. Father's children had a good relationship with the other children in the house, with Ms. L and Father as well.

The second witness to testify was Nancy B., who is Father's mother. The Court found her testimony to be honest and credible. Ms. B. testified that she has lived in Williamson, New York from 1977 to present with her husband, Richard B., and their son, Kyle B.. Mrs. B. testified that she was a safety supervisor at Heluva Good Cheese for seven years in Sodus, New York.

She babysits the children as needed for Father, approximately three to four times each month at her residence. Ms. B. also visits the children two times weekly. Since Ian B. Jr.'s birth, Nancy B. visited with the children regularly, including sleep overs.

Since the fall of 2009, Father lived in two residences. One was on Tacahoe Road in Wayne County, New York and in the fall of 2009 he then moved to Sherman Avenue in Williamson, New York, which is his current residence. She testified that the children had a very good relationship with their Father and were involved in many activities, including board games, reading and baseball.

In June of 2010, Ian Jr. participated in t-ball once weekly for approximately seven weeks. Mrs. B. watched each game and testified that Father was the assistant coach and Mother attended only one game. Mrs. B. testified that in Father's residence the children sleep in a first floor bedroom with bunk beds.

From November of 2009 to June of 2010, Mrs. B. testified that Mother was unemployed. Mrs. B. testified that Father was usually working, but sometimes unemployed for a short period, because of the seasonal nature of his work.

In November of 2009, Mother was invited to help plan for the child Ian's birthday party at a bowling alley in Newark, New York. From November of 2009 to June of 2010, Mrs. B. gave Mother approximately $50.00 towards birthday parties and Father had provided Mother rent money.

The third witness to testify was Karoline M. who is Father's girlfriends' mother. The [*3]Court found her testimony to be honest and credible. Ms. M. is a senior certified nursing assistant at Newark Hospital and works four days weekly.

Ms. M. testified that she lived with her husband, David M., her daughter Micolette L., three grandchildren, Father and his children. Ms. M. testified that her daughter moved in with her because she is getting divorced from her husband. Ms. M. observed Mother's picture in the children's bedroom. Father's children have their own bedroom. Father and his children moved in with their daughter and her children from December of 2009 to present. Ms. L.'s children are nine, five and four years of age.

Ms. L. provides daycare for the children while Father is at work. Ian B. Jr., is in school during the day. From September of 2010 to present, Ian attended the Williamson Elementary School.

Mrs. M. testified that Father was employed and was home by 3:45 p.m. Monday through Friday. Father was a sprinkler installer and did not pay any rent or utilities, but did pay for himself and his children's food.

The children had a closer relationship with their Father. The children get along with the other children and play well together. Father engages in many activities with the children, he plays with them on the swing set and slide, colors with them, watches movies, reads books, plays baseball, soccer, horseshoes, bicycles, trampolines, and frisbees.

Father would return home after work to prepare the children's dinners and eat with them. The children's bed time is 8:00 p.m. during school nights and a little later on non-school nights. Father gets the children ready for bed, including showers, dressing them in pajamas and kisses them good night.Mrs. M. has not observed any medical difficulties of the children. One time Daniel hurt his ankle and was taken to the doctor. Father disciplines the children by giving them time outs. Mrs. M. has never witnessed anybody administer corporal punishment to the children.

The fourth witness to testify was John N. who is the maternal grandfather. The Court found his testimony to be credible and honest. Mr. N. resides at 171 Dale Road in Brighton, New York. Mr. N. was employed as a music teacher.

He testified that Mother graduated from the Rochester Institute of Technology in December of 2009 and while Mother was attending the Rochester Institute of Technology, Father worked. Mother's major was Communications while she attended the Rochester Institute of Technology. In the summer of 2009, Mother submitted many employment applications to the Rochester Institute of Technology, Buffalo, Syracuse, Watertown, Washington, DC and Fort Worth, Texas areas.

On November 1, 2009, Mother moved her residence to an apartment near Panorama Plaza in Penfield, New York. From November 1, 2009 to June 24, 2010, Mr. N. provided Mother financial assistance, including rent, food and the Rochester Institute of Technology tuition.

Mr. N. observed both parties with the children and did not observe any inappropriate behavior with the children. He did testify that Mother disciplined the children with timeouts.

Mr. N. knew that Nathan W. was a soldier and a friend of Mother's. He was not aware if they were engaged. Mr. N. testified that the children met Mr. W. In the summer of 2009, Mother was looking for employment in the Watertown, New York area, where Mr. W. was stationed.

On June 25, 2010, Mother relocated to Texas without the children and the children [*4]resided with Father exclusively. Mr. N. testified that he and his wife were able to visit with the children during this time period with Father's consent while Mother was in Texas.

The fifth witness to testify was Kathleen D.-N., who is the maternal grandmother and resides with the maternal grandfather in Brighton, New York. The Court found her testimony to be honest and credible. Mrs. D.-N. was employed as an oral interpreter.

The maternal grandparents visited the children at least once weekly, including over nights after Mother moved out. Since July of 2010, Father allowed the maternal grandparents alternate weekend visitation with the children on Sundays and one weekend per month over night while Mother was in Texas. While Mother was in Texas, Father invited the maternal grandparents to watch Ian get on the bus for his first day of school.

Ms. D.-N. testified that she never saw the parents administer corporal punishment on the children. Photographs dated August 12, 2010 of Ian's hand with numerous scratches on them were admitted into evidence, This minor injury occurred at Father's residence.

From November 2009 to June of 2010, Mother lived at Brook Hill Village in Penfield, New York. The maternal grandparents paid for Mother's rent as well as groceries.

Ms. D.-N. testified that Nathan W. was Mother's boyfriend and she met him in May of 2009. In September of 2009, Mother and Mr. W. were not dating, but Rafael P., "Rafe", was engaged to Mother at that time. Mrs. D.-N. did not learn of Mr. P. until December of 2009. Mr. P. and Mother were engaged in April of 2010.

Mother traveled to Texas where Mr. P. was stationed from March 28, 2010 to April 3, 2010 and again in February of 2010. One of the trips was with the children. From February 24, 2010 to March 3, 2010, Mother traveled to Puerto Rico with Mr. P. without the children.

Ms. D.-N. testified that Mother attended the Rochester Institute of Technology and graduated in January of 2010. Mother applied to businesses in El Paso, Texas where Mr. P. was stationed, since he was a soldier in the United States Army. On June 25, 2010, Mother relocated to Texas without the children.The sixth witness to testify was Susan V., who was the office manager and comptroller at ES Systems. The Court found her testimony to be honest and credible.

Ms. V. knew Father was hired by ES Systems on January 25, 2010 at the hourly rate of $12.00. On September 23, 2010, Father was laid off because of a lack of work. $165.00 weekly was deducted as child support for the children from Father's paycheck. Ms. V. testified that if it was busier, ES Systems would be willing to rehire Father. Father was able to obtain unemployment compensation which was 2/3 of his gross wages after being laid off.

The seventh witness to testify was Manuel "Rafe" P.. The Court found his testimony to be honest and credible. He testified that he was a corporal in the United States Army and stationed at Fort Bliss in El Paso, Texas. He was in the Army for four years and specialized in radar repair technology. In July of 2011, his enlistment would have expired. His base salary was $26,000.00 annually and he had nontaxable allowances for his residence, food, clothing, healthcare insurance and daycare expenses.

Mr. P. testified that he knew Mother for about twelve years and they were recently engaged. He met the children and his residence had two bedrooms. Mr. P. did not have any children. He planned to marry Mother on October 22, 2010 in Puerto Rico. In February of 2010, Mr. P. visited the children and Mother in Rochester, New York for one week and they engaged [*5]in different activities including, playing videos and watching television. In March of 2010, he traveled with Mother alone to Puerto Rico. In April of 2010 Mr. P. met the children in Texas.

On June 25, 2010, through the time of his testimony in September of 2010, Mother and Mr. P. were living together. Mother got a job in El Paso, Texas from Monday through Friday daytime hours. Mr. P. has no family in Monroe County, New York and testified that he did not like the snow and cold weather. He can be deployed anywhere in the world including Afghanistan. At the time of his testimony he was unsure if he would reenlist, but subsequently he did reenlist. Mr. P. cannot be stationed in Monroe County, New York.

The eighth witness to testify was Mother. The Court found that some of her testimony was not credible. She testified that from July 20, 2010 to November of 2010 she resided in El Paso, Texas with her husband, Mr. P., only in El Paso, Texas. Prior to June of 2010 she lived with Mr. and Mrs. J. in El Paso, Texas. Prior to June of 2010 she lived at the Brook Hill residence in Brighton, New York from November of 2009 to June of 2010. Prior to November of 2009 she lived at 171 Dale Road, Brighton, New York with her parents.

Mother attended the Rochester Institute of Technology and received her degree in the Winter of 2009 with a B.S. in Professional Technical Communications. Mother received her diploma in the spring of 2010. She was trained in writing technical manuals, journalism, writing for professional magazines and public relations. Mother testified that the various positions applicable to her degree included journalism, secretarial, administrative assistant, office manager, entry level public relations, and editing manuals.Mother worked various part-time jobs throughout school on and off. From November 2009 to July of 2010, the maternal grandparents paid for Mother's apartment, rent, food, utilities and Father paid Mother child support. In the winters of 2009 and 2010, Father was unemployed. In June of 2010, Mother, while in Texas, was employed as a development writer at the University of Texas in El Paso in Department Research and Advancement Communications. Her duties included writing thank-you letters, e-mails from alumni, telephone calls, memorials for deceased, proposals for grant money, and personal proposals. Mother's salary was $28,200.00 annually, including tuition benefits at the University of Texas, with 100% healthcare for herself and 50% healthcare for the children.

Mother testified about her job searches from the fall of 2008 through May of 2010, including applications to Rochester Institute of Technology attending their job fairs, Careerbuilder.com, the Army Civilian Data Case, and the Democrat and Chronicle Sunday newspaper. In May of 2010, Mother received a job offer at the University of Texas in El Paso, Texas which is where Mr. P. was stationed. While employed in Texas, Mother's work hours were Monday through Friday 8:00 a.m. to 5:00 p.m. In the fall of 2009, Mother received one offer on an application in the Monroe County area to be a fill in receptionist at a senior living center. Unfortunately, this position never materialized. Also, there were no responses to Mother's job applications in Buffalo, Syracuse and the Watertown, New York areas.

From January to June of 2010, the parties communicated about the children by texting. From June to October of 2010, the parties communicated by e-mail while Mother was in Texas. Mother was able to communicate by video conference with the children, which Father cooperated to connect ten minutes daily using skype.

Approximately six times between July to August of 2010, Father did not allow video chats between the children and Mother. Approximately October 1, 2010, the video chats were [*6]stopped during the evenings between the children and Mother because they were disruptive to the children's school nights. There is a two hour time difference between Texas and New York.

Mother testified that she had no relatives in Texas, except for Mr. P.. All of Mother's relatives lived in Monroe County, New York. Mother testified that the children had close relations to her family. Mother testified that all of Father's family lived in Monroe County and Wayne County, New York. The children had extended contact with them as well.

Mother testified that on September 8, 2009 she was upset that her ex-boyfriend, Nathan W., broke off a relationship with her. She dated Nathan W. from approximately April of 2009 to September of 2009.

From February 24, 2010 to March 3, 2010, Mother traveled to Texas without the children. From March 28, 2010 to April 3, 2010 Mother traveled to Puerto Rico without the children. Both times Mother was visiting Mr. P.. By October of 2009, Mother and Mr. P. became reacquainted. In February of 2010 she traveled to Texas. On April 15, 2010, Mother told Father that the she and the children were leaving for Texas from April 20, 2010 to April 28, 2010. Father did not give permission because it interfered with his visits.

Mother testified that in approximately January 2010, Father paid her child support of $60.00 weekly. It increased in April of 2010 to $110.00 weekly and increased again in June of 2010 to $165.00 weekly. The Court took Judicial Notice that there was an Order of child support dated April 1, 2010, which required Father to pay Mother child support of $110.00 weekly. From June 24, 2010 to September 9, 2010, Mother received twelve child support payments in the sum of $165.00 while the children were with Father. Mother did not return any of the child support payments to Father. Father was current with all his child support payments. There is a January 6, 2011 child support Order directing Mother to pay Father $50.00 monthly for child support, medical insurance and to provide the children's medical insurance cards to Father.

In the spring of 2010, the child, Ian, participated in t-ball and there were approximately eight to nine games. Mother only attended one. Father attended all of them and was the coach. In 2009 and 2010 both parties attended the children's parent-teacher conferences.

From March to June of 2010, Ian thought that he was relocating to Texas because Mother told him that. On July 30, 2010, Father did not allow a video chat between Mother and children because of a cookout. Mother told Father that he was a terrible and disgusting father. On July 30, 2010, Mother gave Father a list of people who should watch the children while the Father was at work because she did not want Father's girlfriend, Micolette L., to watch the children. In August of 2010, on facebook Mother said Father was a horrible excuse for a human being. On February 14, 2010, on Mother's facebook she had a picture of her hand bandaged because she lost her temper and punched a wall. On

November 21, 2010, Mother posted on a blog that Father had not looked for a job in two years, the children where miserable with Father, that Father owes over $6,000.00 in child support and Father wants child support to support his lazy a**. Approximately 200 people had access to Mother's facebook account. Mother filed a Family Offense Petition against Father during the pendency of this proceeding and it was dismissed.

On September 30, 2010, the parties were divorced. On October 1, 2010, Mother married Mr. P.. On December 23, 2010, Mother withdrew her Relocation Petition. From June 25, 2010 to November 2, 2010, Mother was in Texas and the children lived exclusively with Father. [*7]

Currently, Mother lives with her parents at Dale Road in Brighton, New York and is unemployed. Mother applied to various restaurants in Watertown, New York. As of December 23, 2010, Mr. P. was still residing in Texas. Mother was unable to decide if she would relocate to Watertown, New York if she retained custody of the children.

Mother's current income is through her husband, Mr. P.. She does have greater financial allowances as the spouse of a solider. Mother's benefits for the children include emergency visits and prescription drugs while living in New York State.

On August 25, 2010, Mother returned for a weekend visit and took the children to a different pediatrician, Dr. S. Father was not notified until twelve days later. Dr. K. was the children's pediatrician from birth.Mother testified that she uses age appropriate timeouts for disciplining the children and her marriage broke up because Father drank too many times in the children's presence. Mother testified that she had no prior criminal record and neither did Father. Mother had no alcohol or drug problems, had never been confined to a mental institution, had never been treated for a mental illness, had no child protective findings against her, her health was good, she had no

disabilities, and was not on any medication. Mother had a very good relationship with the children, but Father's relationship with the children was strained.

Ian was passing in school, his attendance was excellent, the children's health was good, but they have asthma. Mother stopped smoking in November of 2010.

The ninth witness to testify was Father. The Court found his testimony to be honest and credible. From December 2009 to present he resides at 4277 Sherman Avenue in Williamson, New York with his girlfriend, Micolette L., her parents, her three children and Father's two children. All of the residents have good relations with each other. The children sleep in their own bedroom with two closets, their own dresser, desk and bunk beds.

Father is a carpenter by trade for at least 10 years and has experience in electric and plumbing. He is employed Monday through Friday 7:30 a.m. to approximately 5:00 p.m. As of January 2011 he was employed at ES Systems as a sprinkler fitter. He completed one year at Alfred State College as an architecture major. From September of 2009 to present, Father worked consistently except for one or two months in the winter. During the parties marriage, Father was employed and the major wage earner. In 2010, Father was unemployed for only two weeks. Father's current income is $24,000.00 annually. Father will return to work at ES Systems as soon as this proceeding is finished.

Since Mother returned from Texas on November 7, 2010 she visits the children on Tuesdays and Wednesdays and alternate weekends from Friday to Sunday.

Father confirmed that in February and March of 2010 while Mother took trips away from the area to visit Mr. P., the children lived with him exclusively. From late summer of 2009 to present Father lived with Micolette L. and her children. From June to November of 2010, while Mother was in Texas, Father was the sole caretaker of the children.

Father engaged the children in fishing, swimming, camping, a balloon festival and bike riding. There were many photographs admitted into evidence illustrating various times in the children's lives, various events, and various locations including Father's residence that Father was with the children and his extended family. Father was Ian's t-ball coach in the spring of 2010 and attended all eight games. Mother attended one and was notified of all of them. [*8]

Father helped prepare the children's breakfast all week and attended numerous activities for Ian at school. Father helped Ian with homework, arithmetic, and both children with reading. In June of 2010 Father noticed Mother of Ian's art award. In 2009 and 2010, Father attended parent teacher conferences for Ian. Father does not smoke and does not allow anyone else to smoke around the children in a confined area, including the home or car. From November 10, 2010 to present, Ian has been in counseling for children of divorced parents. Father did not work on the weekends. The children have simple chores to keep their rooms tidy and their clothes in the hamper. Father had dinner approximately 5:00 p.m. to 6:00 p.m. with Father's children and Micolette L.'s children eating together. Father's house is spacious with a yard, playground and toys.

While Mother relocated to Texas, Father allowed video chats between Mother and the children many nights of the week. Father allowed extra visitation time between Mother and the children since her return to New York. Father did have a picture of Mr. P. and Mother in the children's bedroom and her family. Father allowed the maternal grandparents to visit with the children while Mother was in Texas, on alternate weekends from Saturday to Sunday. Father invited them to see Ian off on his first day of school.

Father was current with his child support obligation. Father did pay Mother child support while Mother lived in Texas and the children were with Father. Mother refused to send the children's medical insurance cards to Father after three requests, but sent them to the maternal grandparents.

Father disciplines the children by using time outs on the bed or to stand next to a wall. Father has never struck the children or used soap in their mouths.

Father testified that he had no prior criminal record, no child protective findings, no substance abuse issues, and no mental health problems. He last used marijuana over one year ago. Mother used to use marijuana with him, but the children were never with them. Both parties purchased marijuana.

Father lived in Williamson, New York all of his life with his extended family and has no plans to move. From August 2009 to December of 2009, Father resided at Tacahoe Road in Williamson, New York with Ms. L. and her children. Father pays the landlord $100.00 weekly for rent.

The Court conducted a Lincoln Hearing with the attorney for the children and children present. The testimony is confidential.

Father requested custody, primary residence and equal visitation.

CONCLUSIONS OF LAW

The Fourth Department Appellate Division has stated that "it is well established that alteration of an established custody arrangement will be ordered only upon a showing of a change in circumstances which reflects a real need for change to ensure the best interest of the child." Amy L.M. v. Kevin M.M., 31 AD3d 1224, 817 NYS2d 850 (4th Dept., 2006); Horn v. Horn, 74 AD3d 1848, 902 NYS2d 738 (4th Dept., 2010); Dormio v. Mahoney, 77 AD3d 1464, 908 NYS2d 378 (4th Dept., 2010); Moore v. Moore, 78 AD3d 1630, 910 NYS2d 803 (4th Dept. 2010).

"In determining whether a custody agreement should be modified, the paramount issue [*9]before the court is whether, under the totality of the circumstances, a modification of custody is in the best interest of the children." Johnson v. Johnson, 309 AD2d 750, 756 NYS2d 271 (2nd Dept., 2003); Graves v. Stockigt, 79 AD3d 1170, 911 NYS2d 705 (3rd Dept., 2010); Matter of Perry v. Korman, 63 AD3d 1564, 880 NYS2d 815 (4th Dept., 2009).

There is no one factor that is determinative of whether there should be a change in custody, this includes the existence of a prior custody agreement. The prior agreement is one of the factors to be considered. "No agreement of the parties can bind the court to a disposition other than that which a weighing of all the factors involved shows to be in the child's best interest (People ex rel. Wasserberger v. Wasserberger, 42 AD2d 93, 95, aff'd on opn below 34 NY2d 660)." Friederwitzer v. Friederwitzer, 55 NY2d 89, 432 NE2d 765, 447 NYS2d 893 (1982). In addition, the court in Friederwitzer noted that the weight to be given to the prior agreement depends on whether there was a full hearing before the trial court or it was merely the uncontested stipulation of the parties incorporated into the court's judgment. See also, Maher v. Maher, 1 AD3d 987, 767 NYS2d 179 (4th Dept., 2003).

In determining the child's best interest, the factors to be considered include:

(1) The quality of the home environment and the parental guidance the custodial parent provides for the child.

(2) The financial status and the ability of each parent to provide for the child.

(3) The ability of each parent to provide for the child's emotional and intellectual development.

(4) The individual needs of each child ... the desires and preferences of each child. But again, this is but one factor to be considered, as with the other factors, the child's desires should not be considered determinative. ... in weighing this factor, the court must consider the age and maturity of the child and the potential for influence having been exerted on the child. Eschbach v. Eschbach, 56 NY2d 167, 436 NE2d 1260, 451 NYS2d 658 (1982)

(5) The demonstrated parenting ability and demonstrated fitness of the parties.

(6) The love, affection, and nurturing given by each party to the child, the emotional bond between the child and each party, and the willingness and ability of each party to put the child's needs ahead of his/her own.

(7) The willingness and ability of each party to facilitate and encourage a close and optimum relationship between the child and the other party.

(8) Any other factors deemed relevant to a particular custody dispute; e.g., domestic violence and its impact on the child.

Eschbach v. Eschbach, 56 NY2d 167, 436 NE2d 1260, 451 NYS2d 658 (1982); Friederwitzer v. Friederwitzer, 55 NY2d 89, 432 NE2d 765, 447 NYS2d 893 (1982); Nehra v. Uhlar, 43 NY2d 242, 372 NE2d 4, 401 NYS2d 168 (1977); Matter of Bryan K. B. V. Destiny S. B., 43 AD3d 1448, 844 NYS2d 533 (4th Dept., 2007); Maher v. Maher, 1 AD3d 987, 767 NYS2d 179 (4th Dept., 2003); Amy L.W. v. Brendan K.H., 37 AD3d 1060, 830 NYS2d 408 (4th Dept., 2007); Christy L.T. v. Andrew R.V., 48 AD3d 1202, 850 NYS2d 765 (4th Dept., 2008); Matter of Michael P. V. Judy P., 49 AD3d 1158, 856 NYS2d 370 (4th Dept., 2008).

"The weighing of these various factors requires an evaluation of the testimony, character and sincerity of all the parties involved in this type of dispute. Generally, such an evaluation can best be made by the trial court which has direct access to the parties ... ." Eschbach v. Eschbach, 56 NY2d 167, supra.. [*10]

In this case, the mother's remarriage, her changing employment situation and living arrangements constitute part of the requisite showing of a change of circumstances warranting an examination of the issue of custody.

In contrast, the father has provided Ian and Daniel with a structured, stable and loving home. Father has also demonstrated his willingness to ensure that the children maintain their relationship with the mother and her family. He has given the mother access to the children when she was living outside of New York and came for visits. He has also allowed the children to visit her parents when she was living in Texas.

The father has been actively involved in all aspects of the children's lives.

LAW GUARDIAN RECOMMENDATION

The attorney for the children recommended that custody remain with the mother based on the stated position of her clients. This recommendation was not based on the best interest of the children. Family Court is not required to follow the recommendations of the Attorney for the Children. Fisher v. Fisher, 206 AD2d 910, 616 NYS2d 281 (4th Dept., 1994); Groth v. Groth, 239 AD2d 953, 659 NYS2d 603 (4th Dept., 1997); Hopkins v. Wilkerson, 255 AD2d 319, 679 NYS2d 412 (4th Dept., 1998); Salerno v. Salerno, 273 AD2d 818, 708 NYS2d 539 (4th Dept., 2000); Johnson v. Johnson, 309 AD2d 750, 765 NYS2d 271 (2nd Dept., 2003). This court has not arbitrarily disregarded her recommendations rather the court, in its discretion, rejects the recommendations of the Attorney for the Children because it is not supported by the testimony and evidence presented in this case.

SOLE CUSTODY

The parties do not communicate. They do not discuss important issues related to the children. They are unable or unwilling to cooperate on matters concerning the care and welfare of the children. Joint custody is not an option here because the parties are unable to successfully co-parent the children.

Based upon the court's assessment of the credibility of the witnesses and the evidence at trial it is in the children's best interest to award sole custody to the father. (Matter of Dubuque v. Bremiller, 79 AD3d 1743, 913 NYS2d 855 (4th Dept., 2010). In cases such as this one, where the parties have a bad relationship and are unable to communicate regarding the children then joint custody is inappropriate. (Christopher J.S., Sr. v. Colleen A.B., 43 AD3d 1350, 842 NYS2d 627 (4th Dept., 2007).

"Although the record establishes that neither parent is unfit, the record also establishes that respondent and petitioner are incapable of cooperating with each other in order to raise the children. Thus, an award of joint custody, ... would be inappropriate (see Bliss v. Ach, 56 NY2d 995, 439 NE2d 349, 453 NYS2d 633 [1982])." Christopher J. Brown v. Celeste M. Marr, 23 AD3d 1029, 804 NYS2d 181 (4th Dept., 2005).

DESIRES OF THE CHILDREN [*11]

The Attorney for the Children advocated that the children wanted to reside with the mother and the court conducted a Lincoln hearing, despite the very young ages of the children. The child Ian is six years old and Daniel is four years old. They possess neither the emotional maturity nor the intellectual insight to decide which parent they will live with.

"The desires of young children, capable of distortive manipulation by a bitter, or perhaps even well meaning, parent, do not always reflect the long-term best interest of the children (see Dintruff v. McGreevy, 34 NY2d 887, 888; Matter of Lincoln v. Lincoln, 24 NY2d 270, 273). ... In the Lincoln case, the court observed that "[a] child whose home is or has been torn apart is subjected to emotional stresses that may produce completely distorted images of its parents and its situation. Also its feelings may be transient indeed, and the reasons for its preferences may indicate that no weight should be given to the child's choice" (supra, p 273)." Nehra v. Uhlar, 43 NY2d 242, 372 NE2d 4 (1977).

The Fourth Department Appellate Division has indicated that the children's preference should be considered along with the children's ages and level of maturity. "While the express wishes of children are not controlling, they are entitled to great weight, particularly where their age and maturity would make their input particularly meaningful." Stevenson v. Stevenson, 70 AD3d 1515, 894 NYS2d 696 (4th Dept., 2010).

The court in Eschbach (supra) "found that the strong preference to live with their father expressed by these children, who were ages 16 and 14 at the time of the hearing, should be given consideration."

DECISION

The court after a review of all the evidence and being in a position to observe the demeanor and credibility of the parents finds that, in the totality of the circumstances, the best interest of these two children is served by awarding sole custody to the father. The court finds the father to be loving, caring and a well qualified, fit, parent. There is no evidence that he attempted to discourage or interfere with the mother's relationship with the children. The father's girlfriend and her children enjoy a close relationship with the children.

The mother, while not unfit, is less fit. She has put her own best interests and her personal and social life above the best interests of the children. The testimony reflects that the mother's living arrangements have been uncertain. She has had a number of romantic relationships until finally marrying during the course of the trial. During these romantic relationships she abdicated her role as the children's primary caregiver by sending them to live with the father after becoming involved in a new relationship. She moved out of New York State to Texas to be with her fiancé and then only visited the children a few times.

"The record establishes that respondent is less fit than petitioner as a parent and is less able than petitioner to provide for the child's stability and physical, medical, educational, moral, and emotional well-being (see Matter of Vincent A.B. v. Karen T., 30 AD3d 1100, 1102, 816 NYS2d 637(2006), lv. denied 7 NY3d 711, 857 NE2d 65, 823 NYS2d 770 (2006); Matter of Pinkerton v. Pensyl, 305 AD2d 1113, 114, 757 NYS2d 921 (2003)." Matter of Pauline E. v. Renelder P., 37 AD3d 1145, 829 NYS2d 383 (4th Dept., 2007); Matter of Paul W.H. v. Brenda M.M., 37 AD3d 1127, 829 NYS2d 784 (4th Dept., 2007).

THIS CONSTITUTES THE DECISION AND ORDER OF THIS COURT

ENTER

_____________________________________

JOSEPH G. NESSER,Judge of the Family Court

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 LAW GUARDIAN UPON THE APPELLANT, WHICHEVER IS EARLIEST.

Dated:April 7, 2011

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