Matter of House v O'Rourke

[*1] Matter of House v O'Rourke 2015 NY Slip Op 52011(U) Decided on August 10, 2015 Family Court, Oneida County Brouillette, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 10, 2015
Family Court, Oneida County

In the Matter of a Proceeding under Article 6 of the Family Court Act, Joshua House, Petitioner,

against

Susan O'Rourke, Respondent.

In the Matter of a Proceeding under Article 6 of the Family Court Act,

Susan O'Rourke, Petitioner,

against

Joshua House, Respondent.



V-04335-03/15F



Theresa M. Girouard, Esq., Attorney for Petitioner

Gustave J. DeTraglia, III, Esq., Of Counsel Oneida County Public Defender's Office — Civil, Attorney for Respondent

Doreen M. St. Thomas, Esq., Attorney for the Child
Julia M. Brouillette, J.

Before this Court are two petitions. The first, filed on February 17, 2015 by Joshua House (hereinafter referred to as the Petitioner), is a Petition for Modification of Order of Custody and Visitation, requesting he be allowed to relocate to Michigan with the subject child, Brandon. Petitioner alleged in his petition that he is unable to find local employment and there is [*2]a "lack of daycare for children and family."

The second, filed on April 24, 2015, by Susan O'Rourke (hereinafter referred to as the Respondent), is a Petition for Modification of Order of Custody requesting the prior Order "Modification of an Order of Custody and Visitation" signed by Hon. Fran S. Cook on February 20, 2014. Respondent alleged as her change in circumstance that the Petitioner plans to leave the state with Brandon, Petitioner quit his job, is unable to financially support the child and Respondent's financial situation has improved such that she is able to financially support the child.

The prior Modification of an Order of Custody and Visitation of February 20, 2014, was consented to by the parties on January 9, 2014, granted, inter alia, joint legal custody to the parties with primary physical custody of Brandon to Petitioner, Joshua House. Respondent was granted parenting time every weekend while school is in session from Friday after school until Sunday evening at 7:00 P.M. and if school is not in session her parenting time with the child could be extended to Sunday evenings at 8:00 P.M. along with holiday and vacation time and such other and further parenting time as the parties could arrange and agree.

The parties were duly served and the case was scheduled for trial commencing June 12, 2015 and continuing on June 17, 2015 and concluded on June 22, 2015. The Court held an in camera with Brandon on June 25, 2015. Closing arguments were due to the Court no later than July 10, 2015.

At the close of the trial, the Court conducted a search of the statewide registry of orders of protection, Family Court warrants, the sex offender registry and the Family Court's child protective records. The Court re-ran the statewide registry checks on August 10, 2015; there were no other results found.

Petitioner called the following witnesses to testify on his own behalf: Susan O'Rourke, himself, Crystal House and Stefani Rinde-Oberferst. Respondent testified on her own behalf as her only witness both in her case in chief and in rebuttal. The Attorney for the Child did not call any independent witnesses. There was no sur-rebuttal.

Susan O'Rourke testified as Petitioner's witness regarding her housing, employment history, mental health status, prescribed medications, household composition, the historical interaction between the child and Petitioner, her relationship with the child, her parenting time, her opposition to the proposed relocation with the child and her disability. Ms. O'Rourke maintained she suffered an unexpected hemorrhage after the birth of her last child, almost died and as a result is still experiencing PTSD, anxiety and depression. Respondent clearly has some unresolved mental health issues which mildly interfere with her parenting. However, significantly, the credible testimony was that she regularly exercises consistent parenting time with the child and is able to meet the child's basic needs, is able to attend school functions and ensures the child's participation in the same.

Joshua House testified regarding his housing, household composition, mental health history, employment history, his relocation between Michigan, Florida and New York during the life of the child, historical interaction between the child and himself, his relationship with the child, his parenting time, financial situation, family support network in New York as well as in Michigan and his desire to relocate to Michigan. Mr. House stated he wishes to move to Warren, Michigan because he has a family support network there; Mr. House acknowledged the family in [*3]Michigan is actually his wife's family, he has family in New York, but does not get along with them. Mr. House testified employment opportunities would be better in Michigan and stated his brother-in-law has agreed to hire him immediately at the starting rate of ten dollars per hour. Mr. House acknowledged he previously had employment working the opposite shift of his wife, who is also employed, the rate of pay was fourteen dollars per hour, that he willingly put in his resignation, applied for another job at a rate of pay of twelve dollars per hour, which then necessitated the parties utilizing out-of-home daycare for another child in their home, not Brandon. Mr. House indicated after obtaining the job which required the parties to obtain day care they decided it was not financially beneficial for Mr. House to continue to work. In spite of his being unemployed, Mr. House stated the parties were not having any difficulties meeting their current financial obligations. Mr. House testified his wife voluntarily quit her current job and was in the process of obtaining employment in Michigan.

Mr. House assured the Court if he were allowed to relocate with the child he would allow the child to return to New York for parenting time with the mother frequently, he would obtain a phone for the child and allow the parties to Skype. Mr. House was confident he could arrange for parenting time to the mother during the summer and school breaks as his mother-in-law has relatives in the area and makes regular trips back to this area to see them. Mr. House testified he is currently paying a monthly rental rate of $975.00 for a house owned by his wife's family; his wife's family has arranged for them to rent a house in Michigan near where they reside at a monthly rental rate of $1,000.00 and have helped them by putting down the security deposit on the house. The only parenting concerns identified by Mr. House regarding Ms. O'Rourke were that he did not believe the child spent enough time with his mother during her parenting time, it was his impression that the child would spend most of the time designated to his mother either playing with his friends or being on the computer.

Crystal House testified she is currently married to the Petitioner, shares a house with Petitioner and three children. Ms. House stated the parties plan to move July 6, 2015, with or without Brandon. Ms. House said she needs the support of her family who reside in Michigan. Ms. House testified their finances would be vastly improved by the proposed move. Ms. House stated she is an LPN, has been actively researching employment opportunities in Michigan and believes the average salary for LPNs is $43,000.00 per annum in Michigan, she is currently making $37,000.00 per annum. Ms. House stated childcare in New York was a thousand dollars per month through the Y, but would be free in Michigan because her mother could provide free childcare. Additionally, since they would have free childcare, Mr. House's time would be freed up enabling him to obtain employment at the starting rate of ten dollars per hour. Ms. House acknowledged on cross that as part of her current employment she sometimes gets over-time, but that it is sporadic and not dependable. Ms. House stated she and Ms. O'Rourke are friends, knows that Ms. O'Rourke has seen a therapist, but did not know what medications may be prescribed to Ms. O'Rourke.

Upon cross examination, Ms. House acknowledged that her mother would not always be available to provide childcare, but that she and Mr. House would be working alternate shifts, so he would potentially be available and if he was not, another family members would be. Ms. House stated she had reached out to Mr. House's family in this area to see if they would assist the family with childcare and his family declined to help them. Ms. House stated she is typically the [*4]one to take Brandon to doctor appointments, attend parent-teacher conferences and extracurricular activities. Ms. House acknowledged Ms. O'Rourke did attend most school appointments/functions, but maintained Ms. O'Rourke did not attend most doctor appointments. Ms. House testified Mr. House did attend doctor appointments, but did not attend most school functions/appointments. Ms. House testified when she and Mr. House initially got together they resided in Michigan, then moved to Florida because she wanted to live someplace warmer; they subsequently relocated to New York because Ms. O'Rourke needed more help with Brandon. Ms. House maintained the parties have lived in New York for eight years and denied the main reason for the move was for her to be closer to her family. Ms. House stated her family regularly travels to New York, her mother comes at least once every three to four months, her father comes once or twice a year and her brother came twice last year. Ms. House maintained her family members would be willing to bring Brandon with them for Ms. O'Rourke to have parenting time. Ms. House stated she has observed Brandon with his mother, when they are together typically Brandon tries to irritate Ms. O'Rourke; plays with his mother's hair, pokes her, says "Mom, Mom, Mom" repeatedly. Ms. House did not identify any parenting concerns she had regarding Ms. O'Rourke.

Petitioner rested with the understanding she would be entitled to call Stefani Rinde-Oberferst at the adjourn date.

Susan O'Rourke testified on her own behalf. Ms. O'Rourke maintained she encouraged a healthy relationship between the child and Mr. House during the years he was not around, kept photos of Mr. House available for the child to view, allowed telephone calls and allowed in-person visitation every time Mr. House returned to the area which was infrequent. Ms. O'Rourke testified regarding the limited communication between her and Mr. House, stated most of the communication occurs between herself and Ms. House. Ms. O'Rourke testified regarding a couple of injuries the child sustained during Mr. House's parenting time and maintained she was the one to take the child to the emergency room. Ms. O'Rourke maintained she had taken the child to medical appointments and would attend when notified. Ms. O'Rourke testified she consented in January 2014 for the child to primarily reside with Mr. House, but only for financial reasons. Ms. O'Rourke stated she was experiencing severe financial hardship at that time and Mr. House was paying limited child support, in the amount of $25.00 per month. Ms. O'Rourke stated she currently gets disability payments and is substantially more financially secure now than she was in January of 2014. Ms. O'Rourke acknowledged she has a $0 support order, but maintained she does purchase items for Brandon, such as school supplies, clothing, snacks and cleats. Ms. O'Rourke agreed Mr. House is a good father, but maintained Brandon needed both parents in his life and she was opposed to the move.

Respondent rested.

Petitioner called Stefani Rinde-Oberferst. Ms. Rinde-Oberferst testified she is a licensed clinical social worker working at Mental Health Connections. Ms. Rinde-Oberferst testified regarding her educational background, employment history and training. Ms. Rinde-Oberferst testified she was Ms. O'Rourke's therapist from August 2014 through December 2014, that Ms. O'Rourke had been a patient at Mental Health Connections since July of 2013. Ms. Rinde-Oberferst stated she met with Ms. O'Rourke a total of four times. Ms. Rinde-Oberferst testified regarding the medications that had been prescribed for Ms. O'Rourke along with the changes in [*5]medications that appear to have occurred on a monthly basis. Ms. Rinde-Oberferst stated it was her professional opinion Ms. O'Rourke was not functioning well, she was very angry, depressed and told Ms. O'Rourke she needed more frequent as well as continued counseling. Ms. Rinde-Oberferst stated Ms. O'Rourke discontinued the counseling over her advice. Ms. Rinde-Oberferst testified Ms. O'Rourke described fighting with ex-boyfriends in her children's presence, sleeping much of the time, was moody, became enraged easily and evinced a lack of concern regarding being out of control in the presence of her children. Ms. Rinde-Oberferst denied Ms. O'Rourke had described a significant traumatic event during which she almost died; rather Ms. Rinde-Oberferst stated their discussions centered around Ms. O'Rourke feeling betrayed by men in general and being enraged by males. Ms. Rinde-Oberferst admitted she assisted Ms. O'Rourke in completing forms to enable Ms. O'Rourke to get medical disability payments. Ms. Rinde-Oberferst maintained she did have some concerns about Ms. O'Rourke being a fit parent, but that her concerns did not amount to Ms. O'Rourke being a danger to her children.

Petitioner rested. The Attorney for the Child did not call any independent witnesses.

Susan O'Rourke testified in rebuttal. Ms. O'Rourke denied any physical altercations with her fiancée, maintained the arguments were verbal in nature only. Ms. O'Rourke stated she was discharged from Mental Health Connections for having missed two appointments, has re-engaged in mental health services elsewhere and stated she attempted to schedule more frequent therapy appointments but Ms. Rinde-Oberferst was unavailable. Ms. O'Rourke maintained she had been weaned off all her medications prior to leaving Mental Health Connections; which was clearly incredulous.

Respondent rested. There was no sur-rebuttal.

The Court had the opportunity to hold an in-camera interview with Brandon on June 25, 2015. Brandon was a relatively quiet, but polite and articulate young man who used age appropriate verbiage as well as interests and expressed age appropriate concerns. Both parents are to be commended for keeping the child out of the adult disagreements and for working together for his benefit.

The Court reviewed the closing arguments received by Theresa M. Girouard, Esq., Gustave J. DeTraglia III, Esq. and Doreen M. St. Thomas, Esq.

The Court notes that there was testimony regarding behaviors that could be determined to comprise domestic violence. There was sufficient evidence to warrant directing that Ms. O'Rourke continue with counseling and specifically engage in anger management therapy. The Court finds so directing Respondent satisfies the provisions of Domestic Relations Law §240.

"Where an order of custody and visitation is entered on stipulation, a court cannot modify that order unless a sufficient change in circumstances — since the time of the stipulation — has been established, and then only where a modification would be in the best interests of the child." Matter of Rain v Dorsey, 101 AD3d 1758, 955 NYS2d 914 (4th Dept 2012).

"It is well settled that relocation cases must be considered on a case-by-case basis with due consideration of all the relevant facts and circumstances and with predominant emphasis being placed on what outcome is most likely to serve the best interests of the child." Lauzonis v Lauzonis, 120 AD3d 922, 992 NYS2d 586, 588 (4th Dept 2014), internal citations omitted. Factors to be considered when evaluating if the proposed move is in the child's best interest "include, but are certainly not limited to each parent's reasons for seeking or opposing the move, [*6]the quality of the relationships between the child and the custodial and noncustodial parents, the impact of the move on the quantity and quality of the child's future contact with the noncustodial parent, the degree to which the custodial parent's and child's life may be enhanced economically, emotionally and educationally by the move, and the feasibility of preserving the relationship between the noncustodial parent and the child through suitable visitation arrangements." Matter of Tropea v Tropea, 87 NY2d 727, 740-741, 642 NYS2d 575 (1996). "Relocation may be allowed if the custodial parent demonstrates, by a preponderance of the evidence, that the proposed move is in the child's best interest." Matter of Hirtz v Hirtz, 108 AD3d 712, 713, 969 NYS2d553 (2nd Dept 2013), internal citations omitted.

The father has failed to meet his burden of proof. "[T]he impact of the move on the relationship between the child and the noncustodial parent [is] a central concern." Matter of Tropea v Tropea, 87 NY2d 727, 739, 642 NYS2d 575 (1996). The mother currently enjoys consistent parenting time with the child every weekend from Friday to Sunday and the father's move to Michigan will have a negative impact on the quantity and quality of the mother's parenting time with the child.

In addition, the father did not establish that the child's life "may be enhanced economically, emotionally and educationally by the move" to Michigan. Matter fo Tropea v Tropea, 87 NY2d 727, 741, 642 NYS2d 575 (1996); see also Matter of Hill v Flynn, 125 AD3d 1433, 1434, 3 NYS3d 249, 250 (4th Dept 2015). Proof was inadequate to nonexistent in regard to what school district the child would attend or what extracurricular activities are available in Michigan and how the same compare to the child's current school district and extracurricular activities. Moreover, the father testified that he voluntarily resigned from a job earning $14.00 per hour, applied for and obtained a job paying $12.00 per hour, causing the father to obtain and pay for childcare (as the father was no longer employed working the opposite shift of his wife), which culminated in the father quitting the $12.00 per hour job to stay home with his children because childcare was cost prohibitive. Now the father wants to move to Michigan with the prospect of a $10.00 per hour job (working for his brother-in-law) and go from paying $975.00 per month in rent in New York to $1,000.00 per month in rent in Michigan. The father's wife also voluntarily quit her current job earning $37,000.00 per year in New York, was unemployed and actively seeking employment in Michigan. The father's recent decisions diminish the child's economic situation.

Consequently, the father's petition seeking to relocate to Michigan is denied.

The denial of the father's relocation petition necessitates a modification of the prior consent Order that awarded joint custody between the parties with the child's primary residence with the father.

Both parties testified they are able to communicate for the benefit of their children; hence the Court will continue the designation of joint legal custody. Based on the totality of the circumstances and needs of the child, the Court further finds it is in the child's best interest to restructure the parenting schedule.

Accordingly, it is hereby

Ordered that the Petitioner, father's petition, V-04335-03/15F, requesting permission to relocate with the child, Brandon, is hereby denied and dismissed with prejudice; and it is further

Ordered that the Respondent, mother's petition, V-04335-03/15G, is granted to the extent [*7]delineated below; and it is further

Ordered that the Petitioner, father and Respondent, mother, shall have joint legal custody of the child Brandon H. (DOB: 9/17/2002); and it is further

Ordered that the Respondent, mother, shall have primary physical residence of the child; and it is further

Ordered that the Petitioner, father, shall ensure Brandon is appropriately transported to and from Michigan for his parenting time either by car or plane and if said transportation is by car the child may be transported by any responsible adult known to the child who is duly licensed in a car that is insured and inspected pursuant to the laws of the state in which the car is registered; and it is further

Ordered that the Petitioner, father, shall have parenting time every mid-winter (typically in February) break and spring (typically in April) break; with the break being defined as the first Saturday of the break through the following Sunday, for a total of nine days; and it is further

Ordered that the Petitioner, father, shall have parenting time every summer from the second week of summer recess to the start of the final week of summer recess, which will result in the Respondent, mother, having the first week and the last week of summer recess and the father having the balance thereof; and it is further

Ordered that the Petitioner, father, shall have parenting time every December 25th at noon though the remainder of the holiday school break, which typically includes New Years Day; and it is further

Ordered that there shall be such other and such further parenting time as the parties may agree and the parties may deviate from the times set forth above if they can agree to do so; and it is further

Ordered that the Respondent, mother, shall continue with mental health counseling and follow any and all recommendations of her counselor, which shall include but not be limited to anger management therapy; and it is further

Ordered that neither party shall engage in any acts that would constitute domestic violence in the presence of the children, nor shall they allow any third party to do so; and it is further

Ordered that neither party shall make any disparaging remarks regarding the other party, their respective paramour or family members, nor allow any third parties to do so, in the presence of the child or anywhere the child is likely to overhear same; and it is further

Ordered that the parties shall keep one another advised of a current address and phone number at all times and will immediately notify the other if they change their address and/or phone number; and it is further

Ordered, that neither parent shall discuss the legal aspects of this case or other adult issues with or in front of the children or permit third persons to do so; and it is further

Ordered that each party is allowed reasonable telephone or other related technology, such as "FaceTime" or "Skype", or similar contact with the child while he is in the care of the other parent and the parties are to have a phone available for the child's use; and it is further

Ordered, the child may call or use other related technology as aforementioned to contact either party anytime they so choose, but that neither party will attempt to coerce, demand or guilt the child into doing so; and it is further

ORDERED that service of a copy of this order by regular mail upon the parties, their respective attorney's and the Attorney for the Child shall be deemed good and sufficient service.

THIS SHALL CONSTITUTE THE DECISION AND ORDER OF THIS COURT

Dated at Rome, New York

on August 10, 2015

Hon. Julia M. Brouillette

Family Court Judge

NOTICE: Pursuant to §1113 of the Family Court Act, an appeal must be taken within 30 days of receipt of the order by appellant in Court, 35 days from the mailing of the order to the appellant by the Clerk of the Court, or 30 days after service by a party or law guardian upon the appellant, whichever is earliest.