Matter of David T. v Jennifer R.

[*1] Matter of David T. v Jennifer R. 2014 NY Slip Op 51965(U) Decided on December 29, 2014 Family Court, Erie County Carney, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 29, 2014
Family Court, Erie County

In the Matter of a Proceeding Under Article 6 of the Family Court Act David T., Petitioner, .

against

Jennifer R., Respondent. In the Matter of a Proceeding Under Article 6 of the Family Court Act Jennifer R., Petitioner, . David T., Respondent. In the Matter of a Proceeding Under Article 6 of the Family Court Act David T., Petitioner, . Jennifer R., Respondent. In the Matter of a Proceeding Under Article 6 of the Family Court Act Jennifer R., Petitioner, . David Z., Respondent. In the Matter of a Proceeding Under Article 6 of the Family Court Act David T., Petitioner, . David Z., Respondent.



In the Matter of a Proceeding Under Article 6 of the Family Court Act Jennifer R., Petitioner v.

against

David T., Respondent.



In the Matter of a Proceeding Under Article 6 of the Family Court Act David T., Petitioner v.

against

Jennifer R., Respondent.



In the Matter of a Proceeding Under Article 6 of the Family Court Act Jennifer R., Petitioner v.

against

David Z., Respondent.



In the Matter of a Proceeding Under Article 6 of the Family Court Act David T.,Petitioner v.

against

David Z., Respondent.



V-12188-10/13C



Appearances:

KEITH B. SCHULEFAND, ESQ.

Attorney for Mother, Jennifer R.

LAURA EMERSON, ESQ. and

BERNADETTE HOPPE, ESQ.

Attorneys for Father, David T.

DAVID M. Z., PRO SE

JEFFREY C. MANNILLO, ESQ.

Attorney for Child, Isaiah (10)

JEFFREY M. HARRINGTON, ESQ.

Attorney for Child, Aron (13)
Mary G. Carney, J.

Before the Court is a factually and legally complex matter involving five (5) petitions between three (3) litigants, David T. (hereinafter referred to as "Father"), Jennifer R. (hereinafter referred to as "Mother") and David Z. (hereinafter referred to as "Mr. Z."). Mr. Z.plays only a procedural role in the matter, but nevertheless complicates an already challenging family dynamic. Mother and Mr. Z. are the biological parents of Aron R. (13) (hereinafter referred to as "Aron"). Mother and Father are the biological parents of Isaiah T. (10) (hereinafter referred to as "Isaiah").

On or about November 12, 2013 Father filed three (3) petitions with this court seeking modification of custody and access, two (2) against Mother and one (1) against Mr. Z. Father requests an order of sole custody for both children, asserting that when Mother moved to Colorado, she abdicated all her parental responsibilities to him; asserting further that she neither [*2]sends any money to support the children nor initiates any contact with the children by phone or skype.

On or about January 17, 2014 Mother filed two (2) petitions with this court seeking modification of custody and access, one (1) against Father and one (1) against Mr. Z. Mother also requests an order of sole custody for both children and court permission to relocate them to the state of Colorado, asserting that she found lucrative employment in Colorado near where her extended family resides. She further asserts that Father fails to facilitate the children's relationship with her by denying them phone and skype access with her among other allegations about his parenting.

Mother and Father agree on precisely one thing — Mr. Z. plays no significant role in Aron's life and is only named herein due to his biological connection, never having forged an emotional one. In fact, Mr. Z. agrees with Mother and Father. Placing his position on the record at an appearance prior to the trial, he acknowledged that he was aware of these proceedings but intended not to participate in any way as he consented to the court proceeding in a default posture as against him.

Testimony was heard on August 18, 2014, August 19, 2014, and December 1, 2014. Mother and Father were the only two witnesses to testify at trial. Additionally, the Court held an in camera conference with Aron and Isaiah (separately) on December 2, 2014. The boys were represented by separate counsel presumably because at one time they had different positions, but by the time the court held the in camera conferences, the children were aligned in their position.

After the completion of the trial and in camera conferences, the court was presented with an Order to Show Cause seeking to re-open the proof to allow Father to call certain witnesses from the children's school and counseling providers to rebut testimony elicited from Mother at the December 1st trial date. Father's supporting affidavit included ten (10) attached exhibits including but not limited to copies of the subpoenas for the witnesses, correspondence from Aron and Isaiah's counselors together with a record of their appointments and treatment plans, correspondence from the children's pediatrician, Lourdes F. Cruz, M.D. and a portion of Isaiah's health chart.

Responding papers were submitted in opposition to the relief requested. Oral argument was held on December 19, 2014. After hearing argument, reviewing all written submissions and based on the totality of the circumstances presented, the Court denied the requested relief; however, upon consent of counsel, all exhibits attached to the Order to Show Cause were moved into evidence as Petitioner's Exhibit 11.

This Court has had the unique opportunity to evaluate and observe the demeanor, temperament and sincerity of each witness and weigh their respective credibility. This Court has further considered the in camera conferences with Aron and Isaiah, the petitions filed by both parties, all documentary evidence including photographs and other exhibits together with the applicable statutory and case law and now makes the following material findings of fact and conclusions of law.

FINDINGS OF FACT

History/Shared Background

Father met Mother in or around 2000, when she was already pregnant with Aron. They began living together and raised Aron as if he were their own child. In or around June, 2003, they married, and six (6) months later, Isaiah was born.

Father testified that when he and Mother were married they made two significant [*3]"marital decisions" that shaped their roles within the marriage. First, that he would be a stay at home dad and she would pursue a career. Second, that he would home school the children rather than send them to public school. Throughout her testimony, Mother consistently stated that these decisions were not "marital" but rather decisions that Father "dictated" which she had no power to challenge. She repeatedly described Father as very controlling and intimidating and labeled their marital relationship as abusive. She described her co-parenting relationship with Father as "not good" and testified that he "intimidates" her and makes her feel "uncomfortable".

Mother and Father physically separated around July, 2010. Around October, 2010 Mother, Father and Mr. Z. consented to two Orders being issued by Erie County Family Court (one against Mother and one against Mr. Z.), both granting Mother and Father "joint shared custody" of Aron only and containing specific language as follows: "ORDERED that the parties consent and agree that if the matter proceeded to trial, extraordinary circumstances would be found, and the best interests of the child would warrant an award of custody to a non-parent." Petitioner's Exhibits 1 and 10 in evidence are copies of these custodial orders.

Mother testified that she regretted consenting to a joint shared custodial arrangement with Father, as she felt pressured to do so; however, she nevertheless recognized the importance of Father in Aron's life and wanted to protect Aron's relationship with him.

Around March, 2012, the parties entered into a Separation & Property Settlement Agreement (Petitioner's Exhibit 3) which was incorporated but not merged into their Judgment of Divorce granted June 28, 2012, (Petitioner's Exhibit 2). Their agreement specifically addresses custody of Isaiah only, but references both children in the "Recitals" and later under "Dependency Exemptions".

In a section of the agreement on page 4, labeled "Article I - Prior Agreements" the parties hand wrote additions and initialed alongside the changes as follows (handwritten additions appear in bold faced type): "Any and all prior agreements and court orders, written or verbal, between the parties purporting to be agreements of separation and/or property settlement agreements and all prior court orders are considered null, void and have no legal effect or significance whatsoever such to be the case from their inception."

Mother believed that this specific language in their agreement as so incorporated into their Judgment of Divorce, nullified and vacated the parties' October 2010 order concerning Aron. Father testified that he believed the language had no effect on the court order and referenced language in the Judgment of Divorce relating to custody of the "children of the marriage" was meant to include Aron.

While the 2010 order regarding Aron granted the parties a true joint shared custodial arrangement, their 2012 divorce decree granted them joint custody of Isaiah with Mother designated primary residential parent. Despite the confusion of what their court orders provided, Mother testified that during the period between when the parties separated (July 2010) to just before she relocated to Colorado (February 2013), the children were not exercising the access with Father as set forth in either order. She testified that they both were primarily residing with her and that they frequently came home early from their visits with Father. After Mother left for Colorado, Father became the children's primary parent ensuring their attendance at school, counseling appointments and doctor visits (February 2013 to present).

Witness, Jennifer R. (Mother)

The court found Mother to be a very reliable and credible witness. She is a 34 year old [*4]woman with a high school degree and "some college" who is presently employed as an Environmental Compliance Engineer with Brocade Communications Systems Inc. in Superior, Colorado. She earns approximately $100,000.00 annually plus incentives; proof of her income and employment were received into evidence as Respondent's Exhibit D (a paystub) and Respondent's Exhibit C (her employment contract).

Prior to the parties' divorce, Mother was employed at "Caplugs" in Western New York and earning approximately $42,000.00 annually. She testified that she was laid off from Caplugs unexpectedly in 2012 about the same time the parties' executed their separation agreement. She testified that she went on unemployment and began aggressively searching for new employment in the Western New York area, but also peripherally in nearby jurisdictions as well as Colorado as that is where her family resides.

Mother obtained employment around January, 2013 with an offer to earn $22.00 per hour at Pro-Unlimited in Grand Island, New York (Respondent's Exhibit A). Within days of receiving that offer, she was presented a second opportunity with netPolarity, Inc., which placed her temporarily at Brocade for $37.72 per hour (Respondent's Exhibit B). In January, 2014, Brocade offered her full time employment as their Environmental Compliance Engineer and set forth in Respondent's Exhibit C.

Mother testified that the financial difference between the two employment offers was too significant for her to pass up (approximately $600.00 more per week), so she passed on the job in Western New York and took the job in Colorado. She relocated in or around February, 2013 and filed a petition seeking relocation of the children.

Due to circumstances and delays beyond Mother or Father's control, a trial was commenced on the original relocation and modification petitions in or around October, 2013 and then abruptly terminated. The instant petitions were then filed and suffered additional delays of their own, but eventually tried to completion, nearly two (2) years after Mother's original application.

Mother currently resides in a two bedroom/two bath apartment located in Broomfield, Colorado with her "common law husband", Ralph Jones. A copy of a Residential Lease expiring September 2015 was received in evidence as Respondent's Exhibit E. Photographs of the apartment (Respondent's Exhibit F) establish that one of the bedrooms, furnished with bunk beds, is dedicated for Aron and Isaiah.

Mother testified that she believes it is in the children's best interests to reside with her in Colorado. Mother testified that she familiarized herself with the schools Aron and Isaiah would attend, touring the facilities, reviewing educational and extracurricular programs and pre-registering each child to ensure a smooth transition. She further researched pediatrician and counseling options for the children to ensure they would be supported medically and emotionally were they to relocate.

Mother testified that despite her own feelings about her relationship with Father, she supports the bond the children have with him. She testified that she would afford them non-physical access through skype and phone and physical access with him when practical during their summer and holiday recesses from school, and any time that Father may be in Colorado. Mother testified knowledgeably and thoughtfully about the differences between Aron and Isaiah and her desire to nurture their individual development by respecting their differences.

Witness, David T. (Father)

The court perceived Father to be a candid, yet sometimes evasive and self-serving [*5]witness, making him less credible than Mother. Father is 47 years old and works as a salaried employee at Citibank earning approximately $61,000.00 annually. He is trained as a software engineer and obtained his degree in computer science in or around 2000. Proof of his income was received in evidence as Petitioner's Exhibit 4.

Father's testimony detailed a significant history and pattern of recurrent unemployment, including a period during these proceedings from about March, 2014 to around September, 2014. Father testified that one long stretch of his unemployment (2004 to 2010) was due to the parties' decision that he be a "stay at home dad" and home school the children.

Father's testimony concerning his efforts as the children's home school teacher demonstrated his tendency to testify ambiguously. For example, when asked, "How did you teach them?" he replied, "The sum total of human knowledge is on the internet." Other aspects of Father's testimony that were problematic for his credibility involved his opinion of Mother's husband, who is a person of color. He was asked whether he had any bias regarding that to which he responded "no", but when asked if he "ever used the n-word" he responded "yes". Additionally, when asked if he employs corporal punishment as a method for disciplining the children he responded, "no", but then indicated that he has employed it in the past "a long time ago — I can't remember".

Father currently resides in the parties' former marital residence with Aron and Isaiah. At the time of his testimony in August, 2014, he testified that he was about five (5) months behind in his mortgage payments due to his unemployment. He testified that his mortgage payment was about $860.00 per month. He further testified that his only income between March, 2014 and September, 2014 was child support that he received from Mother ($300.00 per week) and food stamps ($500.00 per month). By December, 2014 it was stipulated that Father's new employment afforded him the opportunity to bring his mortgage payments current.

Father testified that since Mother has relocated out of the area, he has been responsible for ensuring that the boys get to school, doctor's appointments and counseling appointments. He testified that before Mother left, in or around 2011, he was experiencing difficulties in his relationship with Aron. In fact, he testified that Mother was "attempting to destroy [his] relationship with Aron" by "not co-parenting" with him — so in reaction to that, he put Aron's belongings outside. When asked why he made that choice, Father indicated that he felt he had no other choice because Aron was not cleaning up after himself or doing homework.

Although the children have been in Father's primary care now for nearly two (2) years, he did not testify as competently as Mother concerning their development, individual needs or their emotional bond. There was concerning testimony elicited from Mother regarding the children's need to develop life skills such as "flushing the toilet" after they use it as that is not something which is enforced in Father's home. Father and Mother both presented as responsible parents, but Mother appeared to the court as much more eager to provide the children with warm, nurturing, loving care, whereas Father appeared more primary and much less tender in his approach to parental guidance.

CONCLUSIONS OF LAW

It is well settled 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 (4th Dept. 2006); Horn v. Horn, 74 AD3d 1848 (4th Dept. 2010) lv. denied 15 NY3d 710 (2010); Dormio v. Mahoney, 77 AD3d 1464 (4th Dept. 2010); Moore v. Moore, 78 AD3d 1630 (4th Dept. 2010) lv. denied 16 NY3d 704 (2011). [*6]In determining whether a custody agreement should be modified, the paramount issue before the Court is whether, under the totality of the circumstances, a modification of custody is in the best interest of the child.Perry v. Korman, 63 AD3d 1564 (4th Dept. 2009); citing Matter of Maher v Maher, 1 AD3d 987, 988-989 (4th Dept. 2003).

There is no one factor that is determinative of whether there should be a change in custody, including 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. Friederwitzer v. Friederwitzer, 55 NY2d 89 (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 merely an uncontested stipulation of the parties incorporated into the court's judgment. See also, Maher v. Maher, 1 AD3d 987, (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 demonstrated parenting ability and demonstrated fitness of the parties. (5) 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. (6) The willingness and ability of each party to facilitate and encourage a close and optimum relationship between the child and the other party. (7) The individual needs of the child or the desires and preferences of the child. (8) Any other factors deemed relevant to a particular custody dispute; e.g., domestic violence and its impact on the child.

Turning to the issue of relocation, the Court of Appeals in Tropea v. Tropea, 87 NY2d 727 (1996) enumerated certain factors for courts to consider in making a best interest analysis in relocation cases, including but not limited to: (1) each parent's reason for seeking or opposing the move; (2) the quality of the relationships between the child and each parent; (3) the impact of the move on the quality and quantity of the child's future contact with the non-custodial parent; and (4) the feasibility of preserving the relationship between the child and non-custodial parent through meaningful access arrangements. In the end, it is for the court to determine, based on all of the proof, whether it has been established by a preponderanceof the evidence that a proposed relocation would serve the child's best interests.

The attorneys for the children in the instant matter relied heavily on each of their client's positions as presented to the court in camera. The child's desires should not be considered determinative. In weighing this factor, the court must consider the age and maturity of each child and the potential for influence having been exerted on each child. Eschbach v. Eschbach, 56 NY2d 167 (1982); Friederwitzer v. Friederwitzer, 55 NY2d 89 (1982); Nehra v. Uhlar, 43 NY2d 242 (1977); Matter of Bryan K.B.V. Destiny S.B., 43 AD3d 1448, (4th Dept. 2007); Maher v. Maher, 1 AD3d 987; (4th Dept. 2003); Amy L.W. v. Brendan K.H ., 37 AD3d 1060, (4th Dept. 2007); Christy L.T. v. Andrew R.V., 48 AD3d 1202, (4th Dept. 2008); Matter of Michael P.V. Judy P., 49 AD3d 1158, (4th Dept. 2008).

EXTRAORDINARY CIRCUMSTANCES

One complication of the instant case is that Father is technically a nonparent. The "parental preference" rule, pursuant to which a parent has a right to rear his or her child superior to that of a nonparent, applies in New York until extraordinary circumstances are found. In Guinta v. Doxter, [*7]20 AD3d 47 (4th Dept. 2005), the Fourth Department held that once a preferred status of the birth parent has been lost by a judicial determination that extraordinary circumstances warranted an award of custody to a nonparent, the appropriate standard in addressing the possible modification of the prior order is whether there has been a change in circumstances requiring a modification of custody to ensure the best interests of the children.

Father has been involved and dedicated to Aron for the child's entire life. Father treats Aron and Isaiah equally, as if they were both his natural sons. Mother supports Aron's relationship with Father as equally as Isaiah's. There is no difference in the way either parent treats Aron or Isaiah, and it is clear to the court that Aron and Isaiah treat one another like full brothers as well. Therefore, although the court need not re-visit the issue of extraordinary circumstances, there has been enough evidence presented to support a finding of extraordinary circumstances to allow Father to proceed as a non-custodial parent of Aron as set forth below.

MODIFICATION OF CUSTODY

Both parties seek an award of sole custody in this case, a modification of their prior arrangement. There has been enough evidence presented to the court to support modification of the parties' prior agreement concerning "joint custody". Clearly, some of the parties' hostility has developed due to their time spent in protracted litigation with one another; however, their testimony evidenced a relationship that was irretrievably broken prior to the instant proceedings.

The parties' testimony clearly demonstrated a profound dysfunction and inability to communicate with one another about anything, let alone cooperatively parent their children. Mother testified that she is intimidated and scared of Father, describing their marital relationship as one that was abusive emotionally, sexually and verbally.

She testified credibly about incidents during their marriage when Father would throw household items, including their cats, if he reached his "irritation threshold". She testified that she had sought and received two (2) orders of protection from Erie County Family Court against Father once around the time of their separation and once before she left for Colorado in favor of the children.

Mother's testimony regarding the parties' total lack of communication about something as simple as her Thanksgiving 2014 access was both telling and troubling. She testified that she intentionally did not communicate the specifics of her trip to Buffalo with Father because she "tries not to talk to [him]"; reasoning that he is "vindictive" and "flips out" if planned events do not go precisely as scheduled. Both parties acknowledge that they do not communicate with one another unless it is through text or email.

What was more disturbing was that both complained of an inability to have phone or skype access with the children when they are in the other's care. Mother testified that she circumvents the issue by texting, emailing or utilizing the XBOX to live chat and play games with the boys. Father testified that over the summer of 2014, when he was having difficulty connecting with the children by phone, he called the police and directed they make a welfare check to Mother's residence. Although he had been able to email and text Aron and utilize the XBOX, in defense of his decision to send the police to Mother's home he testified, "I don't force Jennifer to email the kids."

The preponderance of the evidence before the court demonstrates that an award of sole custody to Mother is necessary to further the best interests of the children. While Father appeared to the court to have reasonably undertaken the duties of a primary parent during the period of Mother's absence from Western New York, there was no question that Mother is more proactive and involved when it comes to the children's educational, medical and emotional care.

The quality of Mother's home environment, her financial ability to provide for the children, her ability to provide for the children's emotional and intellectual development and her demonstrated parenting ability are all superior to Father's. Additionally, Mother appears better equipped to sublimate her negative feelings about Father and facilitate and encourage a close and optimum relationship between the children and Father.

Although both parties complained of financial struggles, there was a clear disparity in the parties' financial status and their ability to provide for the children. Father's testimony detailed a significant history and pattern of recurrent unemployment including during these proceedings from about March, 2014 to around September, 2014.

At the time of Father's testimony in August, 2014, he had become five (5) months behind in mortgage payments despite receiving $300.00 per week in child support from Mother. Although it was stipulated that he was now employed and rectifying the situation, he still allowed that debt to mount putting the children's housing at risk.

Mother has a steady and stable income and a spouse who also works; her financial stability is clearly stronger than Father's. Furthermore, Mother can offer Aron and Isaiah a two parent household. Following four (4) years of protracted litigation between their parents, the traumatic and sudden relocation of their Mother, time spent living within a well-functioning, family structure could be beneficial and healing for them.

RELOCATION

The preponderance of the evidence supports that the proposed relocation would serve the child's best interests. Mother's reason for seeking the move is genuine — to afford the children more financial and educational opportunities and more emotional stability. Colorado was not an unintentional or spontaneous choice. Mother is originally from Colorado and has family and friends there. She was able to secure far more lucrative employment there than here. Since her relocation she has acquired suitable housing and is in a stable marriage. Although she had been acting as the children's primary residential parent before she moved, she did not rush the children to Colorado before she had these things in place, but rather waited for the court to decide their fate.

Father is quite critical of Mother's decision to relocate without the children. His testimony characterizing it almost like an "abandonment" of the children; which struck the court as far from the truth. Initially, the quality of Mother's relationship with the children was no doubt impacted by her move, but it is clear that her relationship with the children survived the initial trauma and has flourished. Conversely, the quality of Father's relationship with the children did not improve during his time as their primary parent; in fact, it would seem that it has deteriorated slightly.

Inasmuch as the children will need to travel between the parties' two residences regardless of which parent is awarded primary physical residency, relocation alone is not a proper basis upon which to award primary physical custody to a non-custodial parent. Quistorf v. Levesque, 117 AD3d 1456, 984 (4th Dept. 2014). This relocation will no doubt have a significant impact on the quantity of the children's future contact with Father — but not the quality, as it is feasible to preserve the relationship between the children and Father through meaningful access arrangements, including skype, phone and physical access. Mother's relationship with the children since her relocation offers proof that this can be done.

The final factor that weighed most in favor of awarding Mother sole custody and permission to relocate was Aron and Isaiah's individual need and preference to reside with her. The Fourth Department has held that a child's preference should be considered keeping in mind the child's age and level of maturity. "While the express wishes of children are not controlling, they are entitled to [*8]great weight, particularly where their age and maturity would make their input particularly meaningful." Stevenson v. Stevenson, 70 AD3d 1515 (4th Dept., 2010); see also Mercado v. Frye, 104 AD3d 1340 (4th Dept. 2013).

Both children impressed the court as sensitive, bright and expressive but worried young men. Their preference has been particularly meaningful to the court's decision, but not determinative. It appeared to the Court that both children carried a heavy burden of being squarely in the middle of their parent's custody dispute, not wanting to disappoint their Father but wanting very much to reside with their Mother.

DECISION

After a review of all the evidence and being in the unique position to evaluate and observe the demeanor, temperament and sincerity of each of the witnesses and weigh their respective credibility, the court finds that, in the totality of the circumstances, the best interest of Aron and Isaiah is served by awarding sole custody of both children to their Mother and granting permission for the children to relocate to Colorado.

In modifying the parties' custodial arrangement, the court has carefully weighed all factors, including giving special weight to the children's express position, in determining this modification to be in the children's best interests. The court finds that these battle fatigued, embittered parents to be unqualified to act as joint custodians, and in dissolving their joint custodial arrangement the court finds Mother more fit than Father to act in the role as the children's sole, primary residential parent.

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 attorneys for the parties and 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 Mother's Petitions for Modification of a prior order of custody and access are hereby GRANTED and Father's Petitions for Modification of a prior order of custody and access are hereby DENIED as follows:

(1) Mother shall have sole custody of Aron and Isaiah and be designated their primary residential parent. The children shall relocate to Colorado to reside with their Mother effective immediately.

(2) Mother shall have an affirmative obligation to inform Father in writing (email or text) of all decisions concerning the children's education, health or welfare (including counseling, extracurricular activities, camps etc.) either prior to or contemporaneously with making said decision.

(3) Both parties shall have equal and independent access to all of the children's educational and medical records and providers.

(4) Mother shall have an affirmative obligation to provide Father with all contact information for the children's educational, medical and extracurricular providers (i.e. school, doctor, dentist, orthodontist, coaches etc.) within thirty (30) days of their relocation to Colorado. Said affirmative obligation is on-going and therefore it shall be incumbent on Mother to inform Father in writing (email or text) of all providers concerning the children's education, health or welfare (including counseling, extracurricular activities, camps etc.) either prior to or contemporaneously with making said decision.

(5)The parties shall adhere to the following conditions of access at all times:

(a) There shall be no disparaging remarks or discussion of these proceedings made in the [*9]presence of the children by either party, nor shall they permit any 3rd parties including step-parents or significant others of the parents to do so.(b) There shall be no physical punishment of the children by the parties nor shall they permit 3rd parties including step-parents or significant others of the parents to do so.(c) Mother shall purchase all airline tickets to effectuate the transportation for Father's access. Mother shall inform Father of the children's itinerary for travel contemporaneously with her purchase of their tickets.

(6)Father shall have regular access during the children's school year as follows:

(a) Father shall have weekly skype access with the children to minimally occur each and every Sunday at a time that can be arranged between the parties. Mother shall facilitate and initiate the children's skype access with Father. Any such additional and further skype access as can be agreed and arranged between the parties.(b) Father shall have weekly phone access with the children to minimally occur each and every Wednesday at a time that can be arranged between the parties. Mother shall facilitate and initiate the children's phone access with Father. Any such additional and further phone access as can be agreed and arranged between the parties.(c) Father shall have liberal and reasonable text, email or XBOX live access with the children at a times that can be arranged between Father and children. (d) Any time Father is in Colorado, he shall be afforded liberal access upon 48 hours written notice (text message or e-mail) of his intent to be in Colorado, consent to not be unreasonably withheld. On these occasions, Father shall have the opportunity to pick up children from school and/or deliver them to school without interference and take them to their regularly scheduled activities.(e) Any such additional and further access as can be agreed and arranged between the parties.

(7) Father shall have summer and school break access with the children as follows:

(a) Father shall be afforded six (6) weeks of summer access with the children, to be exercised consecutively. And any such additional summer access as can be agreed and arranged between the parties. A week is herein defined as no more than seven (7) days. Father shall choose his summer weeks of access by notifying Mother via text or email on or before April 15th of his choice of weeks.(b) Mother shall have the identical non-physical access (as stated in paragraph 6 for Father) while the children are in Father's physical custody.

(8) The parties shall share holidays, days of special meaning and all other school recesses as follows:

(a) Christmas— The parties shall equally share the Christmas holiday and recess from school, as follows: in 2015 and all odd years, Mother shall have the first half of the break including Christmas Eve and Christmas Day, and Father shall have the second half to include New Year's Eve and New Year's Day. In 2016 and all even years, Father shall have the entirety of the break including Christmas Eve and Christmas Day and the second half to include New Year's Eve and New Year's Day.(b) Spring/February Break- Shall be shared equally between the parties at their discretion. Should they be unable to agree on a sharing arrangement, Mother shall have February Break in odd years, Spring Break in even years. Father shall have February Break in even years, Spring Break in odd years.

This constitutes the Decision and Order of the Court. Submission of an Order by the Parties is not [*10]necessary.

Dated: December 29, 2014

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:

X Order mailed on December 30, 2014 to all counsel:

X KEITH B. SCHULEFAND, ESQ.

X BERNADETTE HOPPE, ESQ.

X DAVID M. Z., PRO SE

X JEFFREY C. MANNILLO, ESQ.

X JEFFREY M. HARRINGTON, ESQ.