Matter of Cathy E. v Scott T.
Annotate this CaseDecided on February 11, 2016
Family Court, Oswego County
In the Matter of a Proceeding for Custody/Visitation under Article Six of the Family Court Act, Cathy E., Petitioner,
against
Scott T., Respondent.
In the Matter of a Proceeding for Custody/Visitation under Article Six of the Family Court Act,
Scott T., Petitioner,
against
Cathy E., Respondent.
V-1074-1075-15/15D
Robert J. Gallamore, Esq., for Cathy E.
Stephen W. Arnold, Esq., for Scott T.
Pamela A. Munson, Esq. for the Children
Kimberly M. Seager, J.
PROCEDURAL HISTORY
On August 20, 2015, Cathy E. (here "the Mother"), filed a Petition for Modification of an Order of Custody/Visitation against Scott T., (here "the Father") regarding the minor children, BT (D.O.B. xx/xx/2008) and ZT (D.O.B. xx/xx/2007) (here collectively "the Children"). On September 10, 2015, the Father filed a Petition for Modification of an Order of Custody/Visitation against the Mother and on November 30, 2015, the Father filed a Petition for Enforcement of an Order of Custody/Visitation as well as another Petition for Modification. The subjects of those petitions were also the Children. The Order at issue was issued by the Hon. Norman W. Seiter, Jr., on October 8, 2013 and duly entered on February 11, 2014 (here "the Order"). The Order granted, joint legal custody of the Children with both parties, physical custody of the Children with the Mother, parenting time for the Father to be every other weekend from Friday at 6:00 p.m. to Sunday at 6:00 p.m., for the Father's current wife to pick up the children for the Father's parenting time and the Mother's step-father to assist with the parenting time transportation and for such other and further parenting time as the parties may agree.
Trial on the petitions ending with docket numbers 15D & 15E commenced on November 24, 2015.[FN1] At the conclusion of that first day of trial, the Court issued a Temporary Order setting the Father's parenting time to be every other Friday with the Father picking the Children up from school and keeping the children until Monday morning when the Father was to transport the Children directly back to school.
Trial continued on December 22, 2015 and on January 8, 2016 and those two trial dates included the petitions filed subsequent to the initial trial date with the docket numbers ending in 15F and 15G.[FN2] At trial, the Mother was represented by Robert J. Gallamore, Esq., the Father was represented by Stephen W. Arnold, Esq., and the Children's interests were represented by Pamela A. Munson, Esq. At trial, the Mother testified on her own behalf and called no other witnesses. The Father called TT, AR, and the Mother to testify. He also testified on his own behalf.
A Lincoln Hearing was held on January 25, 2016. Both BT and ZT were present at the Lincoln Hearing as was their attorney, Pamela A. Munson, Esq. Closing arguments were due from the parties counsel by February 5th and by the Attorney for the Children by February 19th. The Court received and considered a timely closing argument from Attorney Arnold, but did not receive a closing argument from the Mother's attorney. The closing argument of the Attorney for the Children was timely filed and considered by the Court.
LEGAL STANDARD
There are four (4) petitions before the Court, all of them pertain to modification of or enforcement of the Order. With regard to the violation/enforcement petitions, Family Court Act § 156 states the following:
"The provisions of the judiciary law relating to civil and criminal contempt shall apply to [*2]the family court in any proceeding in which it has jurisdiction under this act or any other law, and a violation of an order of the family court in any such proceeding which directs a party [. . .] to do an act or refrain from doing an act shall be punishable under such provisions of the judiciary law, unless a specific punishment or other remedy for such violation is provided in this act or any other law."The line between civil contempt and criminal contempt may be difficult to draw (compare Judiciary Law, § 753 (A) (3) [civil contempt], with Judiciary Law § 750 (A) (3) [criminal contempt]) but the factor that elevates civil contempt to criminal contempt is the level of willfulness with which the conduct has occurred (see McCormick v. Axelrod, 59 NY2d 574, 583 [1983] [citations omitted]). The petitioner bears the burden of establishing that respondent willfully violated the order by clear and convincing evidence (see Matter of Seacord v Seacord, 81 AD3d 1101 [3rd Dept 2011]).
In order for contempt to be found, there must have been an order of the Court which clearly expressed an "unequivocal mandate" (McCormick at 583). It must then be determined that the party being held in contempt had knowledge of the order and, finally, that the order had been disobeyed (id.) (see also Matter of Petkovsek v Snyder, [appeal No.2], 251 AD2d 1085 [4th Dept 1998][concerning civil contempt] and James W.D. v. Sandra C., 44 AD3d 423 [1st Dept 2007], Matter of Glenn v. Glenn, 262 AD2d 885 [3d Dept 1999] and Matter of Keator v Keator, 211 AD2d 987 [3d Dept 1995] [regarding civil and criminal contempt]). "In addition, it must be established that the offending conduct 'defeated, impaired, impeded, or prejudiced' a right or remedy of the complaining party" (Matter of Petkovsek at 1085 [citations omitted]).
With regard to the modification of custody, it is clear that there can be no modification of a custody order without the moving party first establishing that there has been a sufficient change in circumstances warranting a change in custody, and that the change is in the best interest of the child (see Matter of Vasquez v Barfield, 81 AD3d 1398 [4th Dept 2011]; Matter of Scialdo v Cook, 53 AD3d 1090 [4th Dept 2008]; Matter of Brown v Marr, 23 AD3d 1029 [4th Dept 2005]; Matter of Francisco v Francisco, 298 AD2d 925 [4th Dept 2002]; Dintruff v McGreery, 34 NY2d 887 [1974]).
Additionally, "[a] long-term custodial arrangement established by agreement should prevail 'unless it is demonstrated that the custodial parent is unfit or perhaps less fit' " (Fox v Fox, 177 AD2d 209, 211 [4th Dept 1992] [citations omitted]). However, "[a]n existing custody and visitation arrangement that is based upon a stipulation between the parties' is entitled to less weight than a disposition after a plenary trial' " (Matter of Brown v Marr, 23 AD3d 1029, 1030 [4th Dept 2005] [citations omitted]).
Once it is established that there has been a sufficient change in circumstances, the Court must then decide what is in the best interest of the child. In determining what is in the best interest of the child, the Court must consider several factors, including:
"the quality of the home environment and the parental guidance the custodial parent provides for the child . . ., the ability of each parent to provide for the child's emotional and intellectual development . . ., the financial status and ability of each parent to provide for the child . . ., the relative fitness of the respective parents, and the length of time the present custody arrangement has been in effect"(Matter of O'Connell v O'Connell, 105 AD3d 1367, 1368 [4th Dept 2013], quoting Matter of [*3]Maher v Maher, 1 AD3d 987 [4th Dept 2003]).
It is also important for the Court to assess " 'the willingness of each parent to foster a relationship with the other parent' " (Matter of Chilbert v Soler, 77 AD3d 1405 [4th Dept 2010], citing Kaczor v Kaczor, 12 AD3d 956, 958 [3d Dept 2004]). The Court must weigh these factors, together with the express wishes of the child, and the "stability and companionship" of residing with siblings in determining what is in the best interest of the child (Eschbach v Eschbach, 56 NY2d 167, 173 [1982]; see Friederwitzer v Friederwitzer, 55 NY2d 89 [1982]). The weight the Court gives each of these factors depends on the testimony presented, and the "character and sincerity" of the parties (Eschbach at 172-173; see Matter of Pieri v Rider, 195 AD2d 1013 [4th Dept 1993]). It should be noted, that while the express wishes of a child are not controlling, they are entitled to a significant amount of weight, particularly if the age and maturity of the child makes his/her input meaningful (see Stevenson v Stevenson, 70 AD3d 1515 [4th Dept 2010]).
With regard to supervised visitation, "[t]he decision to order supervised visitation is left to Family Court's sound discretion and will only be disturbed [. . . ] when it lacks a sound and substantial basis in the record" (Raychelle J. v Kendell K., 121 AD3d 1206, 1207 [4th Dept 2014]) and "supervised visitation may be warranted if unsupervised time with the children could be detrimental to the child[ren]'s safety because the parent is either unable or unwilling to discharge his or her parental responsibility properly" (id., at 1207-08; internal citations omitted).
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The Mother's testimony made clear that the major impetus behind her filing the petition was that she had lost her ability to transport the Children, and that inability created significant problems between herself and the Father regarding his parenting time. The Court does not find the Mother to be credible regarding her testimony on this issue. While the Mother attempted to testify to significant problems, her testimony was vague and, oftentimes, she contradicted herself.
The Mother's testimony did make clear that a major problem was that the Father would pick the Children up for his parenting time and then the Mother would be unable to retrieve them, thereby causing, at times, the Children to be with the Father longer than scheduled. The Mother's own testimony made clear that she offered on several occasions to pay the Father for gas to return the Children and, when he did return them, she did not provide him with compensation for gas. The Mother's testimony also made clear that she thought the Father unreasonable when she was able to find transportation for the Children to be picked up from his parenting time on Sundays at 12:00 p.m., (thus ending his two-day parenting time at a day-and-a-half), and he refused to permit that. Based upon the Father refusing to transport the Children both ways and the Father refusing to allow his parenting time to be cut short, the Mother requested that this Court grant her sole-legal custody of the Children, restrict the Father's parenting time with the Children to supervised visits at the visitation center, and requiring that the Father pay for transportation of the Children to and from the visitation center.
Of interest to this case is that on November 24, 2015, the Mother testified that she was unable to help transport the Children as she did not have any means of transportation. Yet, that very evening, by her own admission, she packed up her belongings and the Children, and moved their residence from Williamsville, New York to Munnsville, New York, without informing the [*4]Father that she was doing so.[FN3] In addition to not informing the Father that she was moving the Children to a new community and a new school district, she also changed her telephone number. The Mother testified that "she wanted to have a fresh change." It did not work out where the Mother moved to and she moved back to Williamstown on December 10th. The Father was not able to see the Children during that time. Additionally, during that short period of time, the Children had to transition to a new school and then, transition back to their old school. In short, the Mother took it upon herself to move the Children without informing the Father, and in spite of the fact that they have joint-legal custody. The Mother also, clearly, had little regard for the Children and the transitions they had to make by moving to a new school and then moving back.
The Mother currently resides in Williamstown, New York with her mother, her stepfather, her fourteen-year-old daughter and the Children. The Mother is not employed. Of interest is that throughout her testimony, both during her direct case and when called by the Father, the Mother referred to the Father as Mr. T., further emphasizing the strained relationship between them. The Mother's testimony regarding the Children, and her continued referral to them as "my children," made clear that she believes the Children belong to her; she views them as property.
The Father has four children other than BT and ZT. Two of the children reside with their mother, witness AR, and two of the children reside with the Father and his wife, witness TT. The Court found the testimony of both AR and TT to be credible. Ms. R testified that she has a good, working relationship with the Father and also has a good relationship with Mrs. T. Ms. R made clear that she and the Father work together regarding their girls. She also made clear that the Father visits with the girls regularly, that he is good to them and that she has observed him disciplining and that his discipline method is appropriate.[FN4] In summary, Ms. R and the Father are clearly able to work together to do what is in the best interest of their girls.
Ms. R further testified that she has observed the Father with the Children on many occasions and that their girls oftentimes visit with the Father when BT and ZT are there. She believes that the Father is very appropriate with the Children and that they are happy when they are with the Father. She made clear that she has her own, independent relationship with BT and ZT and the she is able to speak with them whether they are at the Father's or the Mother's home.
Mrs. T testified she and the Father also have two girls. Her testimony made clear that she has a good, working relationship with Ms. R and she also has a good relationship with the Mother. The Children have their own room at the their father's home which the Father owns. The Children have their own clothes and toys at their home. Mrs. T. made clear that the Father ensures that the Children have what they need, that he spends a good amount of time with them, he plays with them and that he has a very good relationship with them. She has a good relationship with the Children as well and she indicated that they rarely need to be disciplined when they are at the Tousley home.
The Father testified extensively and the Court finds him to be credible. He indicated that at the time of the Order in 2013, the Mother was actually residing in his home with the Children, not as a couple, but because, otherwise, she would have been homeless. The Father was not going to see the Children out on the street. He indicated that the Mother then told him to take custody because she could not take care of the Children but that she changed her mind and came and got the Children.
His parenting time, pursuant to the Order, is on alternate weekends from Friday at 6:00 p.m. until Sunday at 6:00 p.m. The Father has missed a significant number of his weekends with the Children as the Mother has indicated that she was not going to let the Children go because "she doesn't feel like it". The Father made clear that there have been several instances of the Children not having sufficient food when they are with the Mother, that they lack sufficient toys, and that they oftentimes wear rags. He believes that the Children should be provided for so that they can be kids.
During his parenting time, the Father spends time with the Children working on trucks, playing Xbox, riding snowmobiles and teaching them how to do construction projects. He indicated that they have sufficient clothes, food and toys at his home and that they are well supervised with him. The Father believes that if the Children were with him, it may give the Mother an opportunity to straighten out her life and she would be happier. He made clear that he would encourage the relationship between the Mother and the Children, and that he would transport the Children to and from the Mother's parenting time.
It is undisputed that the Mother has moved with the Children to eight different communities and that the Children have had to change schools five times in two years. They have been enrolled in the Sandy Creek School District, the Pulaski School District, the Oswego County School District, the Munnsville School District and the Altmar-Parish-Williamstown School District. It is also undisputed that the Mother moved the Children in November without informing the Father. The Mother is on public assistance. The Father owns his own construction company. The Mother most often makes her home with the Children in someone else's home. That Father owns his own home. It is also undisputed that the Father used to have a volatile temper but the testimony of all witnesses established that he attended counseling and an anger-management course and has learned how to get that under control.
With regard to modification of the Order, the first assessment that must be made is whether there has been a sufficient change in circumstances that will allow the Court to then assess "best interest". The Court finds that there has been. The Court finds that the Mother's moving the Children to different schools at least five times in the past two years to be a sufficient change in circumstances warranting an assessment of what is in the best interest of the Children. The Court is aware of the difficulty young students can have transitioning from one school to the next. The number of transitions the Children have had to make is particularly disturbing. This is especially so here since it is undisputed that BT has special needs. The facts here are precisely those found in Matter of Moore v Moore, (78 AD3d 1630, 1630-31 [4th Dept 2010]) where the Mother moved often, causing one of the children to attend five different schools in five years. The lower court in Moore found those moves to be a sufficient change in circumstances warranting a best interest review and the decision was affirmed. In addition, the Mother moving the Children without informing the Father, as well as the further demise of the relationship [*5]between the Mother and the Father, serve as additional change in circumstances in this case.
When assessing what is in the best interest of the Children in this case, the Court first looks to the quality of the home environment. It is undisputed that the Father has maintained the same home for many years and that the Mother has moved the Children time and time again over the past two years. It is also clear that the Children's needs are better met when they are at the Father's home. The Court finds the quality of the Father's home environment superior to that of the Mother's. The evidence before the Court leads the Court to find that it is the Father who provides the parental guidance necessary for the Children. The Father is also better able to provide for the Children financially. It is also clear that the Mother and the Father cannot work jointly towards what is in the best interest of the Children (see Wideman v Wideman, 38 AD3d 1318 [4th Dept 2007] citing Bliss v Ach, 56 NY2d 995 [1982]). Finally and most importantly, it is the Father who appears better able and willing to foster a relationship with the Mother than the Mother is with the Father. Based upon the above, the Court finds that it is in the best interest of the Children for there to be a change in the custodial arrangement.
Before the Court may issue any orders of custody and visitation, it must conduct searches of the statewide registry of orders of protection, the sex offender registry and the Family Court's child protective records. The Court conducted these searches and has notified the parties, the attorneys for the parties, and the attorney for the children of the results of these searches, and the Court relied on the results in issuing this Decision.
Based upon the above, the Court finds it in the best interest of the Children to modify the Order, as follows:
That the Father shall have sole legal and sole physical custody of the Children;That the Mother shall have parenting time with the Children every other weekend from Friday at 6:00 p.m. until Sunday at 6:00 p.m.;
That the Father shall be responsible to arrange transportation for the Children to and from the Mother's home for her regular weekend parenting time;
The holiday parenting time shall supersede the regular parenting time schedule and shall be as follows:
The Father shall always have the Children on Christmas Eve Day beginning at 9:00 a.m. until Christmas Day at 3:00 p.m.;
The Mother shall always have the Children on Christmas Day from 3:00 p.m. until December 26th at 7:00 p.m.;
The Mother shall always have the Children on Easter Sunday beginning at 9:00 a.m. until 3:00 p.m.;
The Father shall always have the Children on Easter Sunday beginning at 3:00 p.m.;
The Father shall always have the Children on Thanksgiving Day until 3:00 p.m.;
The Mother shall always have the Children on Thanksgiving Day from 3:00 p.m. until 6:00 p.m. the Friday after Thanksgiving and, if it is the Mother's regular weekend parenting weekend, she shall keep the Children through Sunday at 6:00 p.m.;
The Mother shall always have the Children on Mother's Day from 9:00 a.m. to 6:00 p.m. and the Father shall always have the Children on Father's Day from 9:00 a.m. to 6:00 p.m.;
That transportation for all holiday parenting time shall be as follows: The Mother shall arrange for transportation to pick up the Children at the beginning of her parenting time for all [*6]holiday parenting time and the Father shall arrange for transportation to pick up the Children at the beginning of his parenting time and end of the Mother's parenting time for all holiday parenting time;
That the Mother shall have unfettered access to the Children's medical, dental and educational records and providers for informational purposes and a copy of the final order shall serve as a release of same;
That the parties shall have reasonable telephonic and electronic access to the Children when they are in the care of the other party; and
That there shall be such other and further parenting time for the Mother as can be mutually agreed and arranged between the parties.
While the Father also has violation petitions pending, the relief requested in those petitions was not that sanctions be imposed upon the Mother, but rather that the Order simply be enforced. Therefore, the Court finds that the decision rendered on the modification of custody petitions provides the relief requested in the violation petitions and, therefore, those issues are rendered moot.
The Attorney for the Children, Pamela A. Munson, Esq., shall prepare the new custody order, however, this decision shall take effect immediately. The Court will prepare the order on the Father's violation petitions as well as a letter so that the Father may make immediate arrangements to enroll the Children in their new school.
Dated: February 11, 2016
Hon. Kimberly M. Seager Footnotes
Footnote 1:The Mother had three other petitions that were heard at trial that day, ending in docket numbers 15A, 15B and 15C. All three petitions were against the Father and requesting enforcement, modification and violation of the Order. All three of those petitions were dismissed, after motion made, for failure to establish a prima facie case upon which relief may be granted.
Footnote 2:Counsel had been informed to be prepared to fully litigate any subsequent issues in the event that petitions were filed between trial dates.
Footnote 3:Munnsville, New York is 1 ½ hours away from the Father's residence in Pulaski, New York.
Footnote 4:There was testimony by Mrs. T and the Father, as well Ms. R, to establish that the Father's method of discipline is to have the child who needs punishment stand facing the wall for the amount of time of the child's age. So, if the child is 12-years-old, he or she will stand facing the wall for 12 minutes.
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