Matter of L.N. v K.N.
Annotate this CaseDecided on September 1, 2017
Family Court, Erie County
In the Matter of a Custody/Visitation Proceeding Under Article 6 of the Family Court Act L.N., Petitioner
against
K.N., Respondent
V-14570-14/16B
CHARLES A. MESSINA, ESQ.,
For Petitioner-Father, L.N.
ANTONIO CARDARELLI, ESQ.,
For Respondent-Mother, K.N.
RONALD M. CINELLI, ESQ.,
Attorney for the Child, L.N.
Brenda M. Freedman, J.
Petitioner-Father, L.N. ["Father"] filed a Petition on September 8, 2016 against Respondent-Mother, K.N. ["Mother"] seeking to Modify a Prior Order entered March 10, 2015 regarding the parties' daughter, L. N., born March, 2013. That Petition was later withdrawn in favor of an Amended Petition filed on November 9, 2016. Mother filed a Cross-Petition on February 16, 2017 also seeking a Modification of the Prior Order.
A Trial was held March 8, 2017, May 25, 2017, August 2, 2017, August 23, 2017 and August 30, 2017. Both parties testified as did L.H., director, CAO Headstart; M.S., Human [*2]Resource Assistant, Humboldt House Rehabilitation Center; M.H., Assistant Administrator, Humboldt House Rehabilitation Center; and J.B., Domestic Violence Advocate, International Institute. An In camera was not requested and was determined unnecessary due to L.'s young age and the nature of the issues to be determined herein. Each party made oral closing Summations.
Upon the conclusion of testimony, the parties altered their respective requests to the following: Father requested designation of him as Primary Residential Parent, elimination of the Right of First Refusal and an Access schedule whereby he would have Mondays and Tuesdays, Mother would have Wednesdays and Thursdays and the parties would alternate weekends from Fridays through Monday mornings. Mother requested a continuation of the designation of her as the Primary Residential Parent and that the designation be expanded to include the use of her address for school purposes. Mother opposed any change to the Access Schedule. Mother also requested, and Father did not object, to changing the exchange location to a public place, although the parties could not agree on where that should be. The Attorney for the Child requested that Sole Custody be awarded to Mother and had no objection to the Access schedule proposed by Father or the elimination of the Right of First Refusal.
Now, upon all the pleadings and proceedings held herein and upon the Court's unique opportunity to observe and evaluate the demeanor, credibility, temperament and sincerity of each witness and review the pertinent statutes and case law and apply it to the evidence adduced at Trial, I render the following Findings of Fact and Conclusions of Law, Decision and Order:
Both parties were born in Nigeria. Father came to the United States in February, 1998 when he was 15 years old. The parties met in 1999 while Father was visiting in Nigeria. They were engaged the following year when Father returned for another visit to Nigeria. Mother testified there was a ceremony held in Nigeria that was a cultural marriage. In 2011, Father brought Mother to the United States. They were married in the United States in 2012. L. was born in March, 2013. In early 2014, Father travelled to Nigeria and brought the Paternal Grandmother back. The Paternal Grandmother moved in with the parties and has continued to reside with Father through the present time. In October, 2014 the parties separated when Mother moved out of the marital residence with L.. In March, 2015, the parties consented to the Order that both are seeking to Modify in these proceedings.
The March 10, 2015 Stipulated Order provides for the parties to have Joint Custody with Mother designated as Primary Residential Parent, but designates Father's address to be used for school purposes. It further provides an Access schedule with Father having Access each week from Tuesdays at 6:00pm until Thursdays at 6:00pm and alternate weekends from Fridays at 6:00pm until Sundays at 6:00 pm, and further Access as Agreed and Arranged, including holidays. Each parent is given 2 non-consecutive weeks of vacation time upon 30 days' written notice; and the Right of First Refusal should the other parent be unavailable for more than 6 hours.
Father is employed as a Social Worker at Community Services for the Developmentally Disabled. He works Monday through Friday, 9:00am to somewhere between 4:00 and 6:00pm. He is hired to work 30 hours per week and has some flexibility so that he can work longer hours on some days and shorter hours on others. In previous years during the summers, Father had also worked part-time as a mover whenever he was available, but he denies working those jobs the last two years.
Mother is employed as a nurse's aide at Humboldt House Rehabilitation Center. Her work schedule is inconsistent as she picks up shifts according to her employer's need and her [*3]availability. During the course of the Trial, Mother went from a full-time employee to a part-time employee for undisclosed personal reasons.
Father resides in what had been the marital residence. It is a two-bedroom apartment. The Paternal Grandmother sleeps in one room, Father and L. share the other. Father testified L. has her own small bed in that room. Mother is uncomfortable with these sleeping arrangements because Father and L. are of different genders. She does not want L. seeing Father changing his clothes.
Mother currently has a one-bedroom apartment and shares her room with L. She testified she will be moving to a two-bedroom apartment soon and L. will have her own room there. At the time of the 2015 Order, Mother credibly testified she had been residing in a temporary shelter.
L. attends CAO Headstart Monday through Friday from 8:30am until 4:00pm. She will be in the same program for another year, and the following year she will start kindergarten.
The parties both fault difficulties and differences of opinion in their financial relationship as a reason for their separation. Mother claims there was also domestic violence, Father denies same. Mother credibly testified that while the parties resided together, Father controlled their finances, directed Mother to terminate her educational pursuits and get a job, refused to teach Mother how to drive when she asked him to, refused to drive her to the store when she requested, refused to participate as a spouse in her immigration applications and directed her to discontinue her relationship with certain organizations and people who attempted to acculturate her. Upon leaving the marital residence, Mother moved with L. into a shelter, was linked with an advocate and filed a Family Offense Petition. Mother later dropped the Family Offense case, because, she testified, it was better for L. to have a relationship with Father.
In addition to the 2014 trip when Father brought the Paternal Grandmother back to the United States, Father made a trip to Nigeria in 2016 lasting approximately 4-5 weeks. Father claims he gave Mother 30 days' Notice via Facebook. There was no showing that Mother regularly checked Facebook or that the parties regularly used Facebook as a means of communication. Mother claims she received no Notice until one week prior when he mentioned his trip during an exchange of the child. For this reason, Mother testified, she was caught unprepared regarding her work schedule, that she was able to find coverage for some days, but not others, so she scrambled to piece together childcare coverage. Father testified he gave Mother $100 and some diapers before he left; Mother testified she received the $100 but never any diapers. There was no child support Order at the time. The parties also disagree about what happened upon Father's return. Father testified they resumed the regular Access schedule except for his first day back when he had Access. Mother testified Father took several Mondays in a row (which would have been Mother's Access days) to allow Mother to work extra hours to make up for lost income during his absence. Work records indicate Mother did work many of the Mondays following Father's trip.
Father bases much of his claim on Mother working excessive hours and being unavailable to care for L. This was not borne out by the proof. At the time of the of the 2015 Order, Mother was working approximately 35-40 hours weekly, primarily the overnight shift of 11:00pm — 7:00am. Although the records show that in 2016 and 2017 Mother has been paid considerable amounts of overtime, not all of that is due to actually being present on the job for excessive hours. Mother has been paid Overtime for working on a holiday, because she has "cashed in" sick time or vacation time, because she has called in sick and received sick time but [*4]also worked a different shift that same day, and the like. Although there is no doubt Mother has worked overtime hours, there was no credible proof that Mother has been substantially absent from the home during her periods of Access with L. such that it would be a cause for concern, that L. has been negatively impacted or that Mother is absent substantially more than she was at the time of the 2015 Order.
Although not as often, Father sometimes works during his Access periods too. Prior to L. starting school in September, 2016, this would have occurred regularly, now that she is in school during the week, there are fewer such occurrences. When Father works, and L. is not in school, Father leaves her in the care of the Paternal Grandmother.
Father objects to Mother using third party caretakers to provide child care, but there was no showing that any of the caretakers Mother has used have been inappropriate. Father also admits that before he brought the Paternal Grandmother to the United States, the parties used third party caretakers for L. when the parties both had to work.
Father testified that sometimes Mother works overnights, picks up L. from his residence at 6:15am, takes her back to her home to get ready for school and then transports her to school. There was no proof of how often this occurs or what negative effect, if any, it has had on L..
Father credibly testified that there were many days that Mother worked and did not offer him the Right of First Refusal. Father provided a summary of his notes about those times and estimated there were at least 50 such occasions. At first, Father testified that he always offers Mother the Right of First Refusal and that Mother refused to accept the additional Access. However, Father later admitted that he does not always offer Mother a Right to First Refusal and that he leaves L. in the care of the Paternal Grandmother when he has to work.
Although Father complained of being deprived the Right of First Refusal, he also testified that he has been given L. far more than he is scheduled to have her. Father testified that he had Access on 5 additional occasions in January, 2017 and 6 additional times in February 2017. Father argues that because he has L. so much, he should be given a greater Access schedule.
When the parties have utilized the Right of First Refusal, there have been problems and police involvement. On one occasion, Father exercised his Right of First Refusal and had L. overnight. When Mother got off work the following day, she called but he did not answer the phone. Mother showed up with the police to retrieve L.
September 5, 2016 was the Labor Day holiday immediately preceding L.'s first day at Headstart. It was Mother's weekend and her holiday Access day. Mother took L. to her friend's house when she had to go to work without offering Father the Right of First Refusal. Father found out and was upset because it was the night before L.'s first day of school. Father did not call Mother to discuss the issue; instead, Father called 911 and showed up with the police at 2:00am at the caretaker's house. The caretaker said L. had been with her since 2:00pm. Rather than leave L. to sleep, Father demanded she be given to his care. Since L. had been at the caretaker's home more than 6 hours, whereby the Right of First Refusal should have been triggered, the police had L. awakened, gave her to Father and Father took her to his home. Later that night, after Mother got off from work, she came with the police to Father's residence to try to retrieve L., but after reviewing the Court Order, the police left L. there. In the morning, Mother drove L. to school and Father drove separately so they could both be present for the first day at school.
Pursuant to the 2015 Order, Father's address is to be used for school purposes. In [*5]Summer, 2016, Father enrolled L. in Headstart using his address. Father testified that he listed Mother as the secondary contact. Mother credibly testified that Father never told her what school L. was registered to attend and that she had to make numerous telephone calls to ascertain where L. was registered. L.H., CAO Headstart Director testified that Mother showed up at her office upset that L. was enrolled at her school and wanted to change to another school closer to her home. Mother showed Ms. H. only the first page of the Order indicating that Mother was the Primary Residential Custodian and failed to show her the subsequent page which provides that Father's address is to be used for school purposes. Ms. H. began to change L.'s school placement, paperwork was changed to show Mother's address as the primary contact and Mother's home was used for the home visit. When Father discovered what was happening, he came to Ms. H. with the remainder of the Order. An argument ensued involving both parents and school personnel who ultimately decided that based on the 2015 Order designating Father's address is to be used for school purposes, L. would go to the program closer to Father's residence.
Father testified that the parties had previously discussed where L. was to go to school and that Mother simply requested that it be on a bus route because she did not own a car. Father's testimony was not credible. Although Mother admitted to having that conversation, she credibly explained it was remote in time from L.'s school enrollment and preceded her ownership of a car.
Father also testified that the parties had decided to send L. to Cheektowaga schools, and that was the reason for the 2015 Order provision using his address for school purposes, however that testimony was not supported by the evidence. This Court credits Mother's testimony that Father's address was used for school purposes because she lacked permanent housing at the time.
Mother admitted that she was upset that the school Father chose was not the one closer to her residence and that she continues to be upset about it. Mother argues that she now has a permanent residence, that she takes L. to school three out of five mornings a week, and that it takes her up to 30 minutes depending on traffic to get there. Mother further testified that she is more actively engaged in L.'s school. Mother attended all three of L.'s field trips this year; Father attended one. Mother volunteers regularly in the classroom, whenever she is picking up or dropping off; Father does not regularly volunteer in the school; Mother attended the parent-teacher conferences. For these reasons, Mother requests a change in designation of the address used for school purposes.
Father however argues that he should be named Primary Residential Parent for all purposes to avoid problems like they had in school registration this year. Father testified that he is actively engaged in L.'s education, that he reads to her, has her read to him, works on letter identification, watches educational programs with her, went on one of the class field trips, attended the school dance, attended a parent-teacher conference and that he interacts with the school on Wednesdays and Thursdays when he is picking up or dropping off.
There was an issue getting L. the medical exam required for school enrollment. Father testified, and there was no contradictory evidence presented, that he told Mother L. needed a physical to be enrolled in school but that Mother said there was no insurance coverage and therefore refused to take her. Father testified that he then put L. on his insurance policy and took her for the physical and required immunizations. Father brought the medical record to the school to enroll her. Father credibly testified that L.'s shots were not up to date when he took her to the doctor and that consequently, L. had to get both the shots she should have received in the past plus the current ones.
On April 25, 2016, Father took L. to the Emergency Room. He testified that he called Mother when he was on his way to the hospital and that she arrived in time to speak with the doctor. Mother testified she did not receive the call until later, that by the time she arrived, L. was being discharged and she only learned of what happened and what treatment was recommended from Father. There was much testimony about a prescription. Father arranged for the prescription to be filled in the pharmacy near his home and Mother wanted it filled at the store near her home. Mother requested Father drive her to the pharmacy to purchase an ice pack. Father refused. Mother called the babysitter who came, picked up Mother and took her to the store to purchase the ice pack. Father did not deny this but said the ice pack was not required. There was confusion about what the prescription was for — whether a syrup or an ice pack, and whether the ice pack was recommended by the doctor or optional. Some of the confusion is clearly due to language barriers and cultural misunderstandings. As a result, the probative value of the testimony is quite limited.
Mother credibly testified that Father has called her derogatory names in the presence of L., particularly at exchanges. For this reason, she requests that the exchanges occur in a public place.
Father has called Child Protective Services on Mother. The investigation was unfounded.
Mother testified that since the prior Order, Father has refused to respond to Mother's texts and has blocked her on Facebook.
There has never been a Child Support Order directing Father to pay support to Mother. There is a current Order dated April 27, 2017 directing Mother to pay both Child Support and maintenance to Father in the amount of $78.30 weekly.
There was considerable testimony about complications in the parties' communications but neither Father nor Mother has requested a change from Joint Custody to Sole. The Attorney for the Child does request that Mother be awarded Sole Custody.
Existing custodial and /or visitation arrangements may be modified only upon a showing that there has been a substantial change in circumstances warranting a modification in the best interests of the child. Eschbach v Eschbach, 56 NY2d 167 (1982); Vasquez v Barfield, 81 AD3d 1398 (4th Dept., 2011). In order for either party to prevail, he or she must show that there has been a substantial change of circumstances that negatively affects the child and requires court intervention. Matter of Cole v. Nofri, 107 AD3d 1510 (4th Dept., 2013). Where the prior order is the result of a stipulation, it is entitled to less weight than a disposition after a plenary trial. Solovay v Solovay, 94 AD3d 898. Here, Mother consented to using Father's address for school purposes in 2015 because she lacked stable housing at the time. Since entry of that Order, Mother has obtained and maintained a stable and appropriate residence.
A parent's efforts to undermine the other parent's participation in decisions concerning the child's welfare constitute a sufficient change in circumstances to warrant inquiry into the child's best interests" (Citation omitted), Tuttle v Tuttle, CAF 15-01315 (4th Dept., 3/25/16). Here, Father failed to consult with Mother about the selection of L.'s school. Not only was that contrary to the Joint Custody relationship of the parties, but Father chose a school convenient for him and inconvenient for Mother. Father never denied failing to consult Mother or advise her of the school's location. Although Father claims to have accommodated Mother's desire to have the school located on a bus route, his testimony was not credible as the parties' conversation was remote in time from the decision-making and prior to Mother having obtained a vehicle. To make matters worse, after making the unilateral decision, Father then withheld the school's [*6]identity and location from Mother. Much unnecessary chaos thereafter ensured which was only exacerbated by the language of the 2015 Order designating Mother Primary Residential parent but also designating Father's address to be used for school purposes.
As a result of the foregoing, this Court finds that a substantial change of circumstances exists warranting a modification in the best interests of the child.
The best interests of the child are determined by a review of the totality of the circumstances. Friederwitzer v Friederwitzer, 55 NY2d 89. Stability is a factor to be considered. Clouse v Clouse, 110 AD3d 1181. The parties currently have Joint Custody and have been operating under a consistent Access schedule since March, 2015.
Each parent's fitness as parents should be considered, Smith v O'Donnell, 107 AD3d 1311, as well as their respective ability to provide for the child's educational and medical needs, Stilson v Stilson, 93 AD3d 1222. Here, both parties are fit and actively engaged in L.'s education and medical care. However, Mother is unable to completely navigate American culture, law and expectations on her own. Mother did not take L. for an annual pediatric check-up timely, although Father admitted that L. did not have medical insurance and that only after Mother informed him that L. needed insurance did he thereafter put her on his plan. Nonetheless, it was Father who took L. to the doctor for the required check-up. L. was not up to date on her immunizations at that time. While the reason for this may have been financial, it was clearly not in L.'s best interests to have missed her regular check-ups. L. needs her Father to be an active participant in her care.
Although there is evidence of acrimony between the parties, they are not so embattled and embittered as to effectively preclude joint decision making. See, Forrestel v Forrestel, 125 AD3d 1299 (4th Dept., 2015), reconsideration denied, 128 AD3d 1426 (4th Dept., 2015), lv to appeal denied, 25 NY3d 904 (2015).
Although the Attorney for the Child requests a change from Joint Custody to Sole, his position is to be considered and is entitled some weight, but is not determinative and does not usurp the judgment of the trial court. Conway v Gartmond, 108 AD3d 667 (2nd Dept., 2013).
Unless it can be shown that the proposed change greatly enhances the needs of the child, the prior order should not be disturbed. Conway v Gartmond, supra. There has not been a showing that L.'s welfare would be greatly enhanced by either party having Sole Custody. Instead, L.'s best interests lie in continuing the parties sharing of Joint Custody.
Father's unilateral decision-making with respect to the location of L.'s school was an abrogation of his duty as a Joint Custodian; his later withholding of this information from Mother was controlling and manipulative. In accordance with DRL Section 240 (1)(a), the court must consider the presence of domestic violence in this case and how it impacts the welfare of L.. Although much of these events occurred prior to the 2015 Order, the Court may consider matters that predate it in order to make a more informed decision. Tarrant v Ostrowski, 96 AD3d 1580 (4th Dept., 2012). Prior to the 2015 Order, Father had controlled the parties' finances, deprived Mother of an opportunity to pursue a nursing degree, demanded that she get a job, refused to teach her how to drive, refused to drive her places when she requested, jeopardized her immigration status by refusing to participate as a spouse in her immigration applications and limited her contact with friends and community. Mother's testimony that Father exerted a controlling influence upon her was credible. Since entry of the prior Order, Father has refused to respond to Mother's texts, blocked her on Facebook, called her derogatory names in the presence of the child, made unilateral decisions about L.'s school and withheld information [*7]from Mother relative to the child's welfare including the identification of the child's school and certain medical information.
There has never been a Court Order directing Father to pay Mother support and Father has never paid any voluntarily. Father did not allow Mother to pursue her education and thus, Mother does not have access to higher paying jobs. Mother is employed and has taken measures to support herself and L. Although Mother sometimes works overtime hours, the amount of actual time she is working is not as considerable as Father testified. Mother's overtime work schedule is not regular or predictable. There was no showing that Mother's work schedule had any negative affect on L. or that Mother left her in the care of inappropriate caretakers.
Both parents are actively engaged in L.'s school, however Mother is more present in the school on a daily basis.
L.'s best interests would be better met by designating Mother the Primary Residential Parent for all purposes, including school.
The Right of First Refusal should be eliminated. Neither parent is offering it regularly to the other parent which has resulted in dramatic scenes at all hours of the day and night, high-stress conflict between the parties and police contact, all of which are clearly against L.'s best interests. Where the Right of First Refusal causes acrimony, it should be eliminated. Salmela v Goodwin, 2013 WL 5928487 (2d Dept. 2013).
Although Father requests a modification of the Access schedule, and the Attorney for the Child has no objection to using it, there was no showing that the current schedule has a negative effect on L. or that her well-being would be greatly enhanced by the schedule Father proposes. Mother opposes any change in the Access schedule. Pursuant to the 2015 Order, Father has significant Access time. Consequently, the prior Order should not be modified. Matter of Cole v. Nofri, supra; Goodfriend v. Devlaetsah-Goodfriend 29 AD3d 1041, 1043, 813 NYS2d 824 (3rd Dept. 2006).
Father has made disparaging remarks about Mother in L.'s presence and this could have significantly harmful effects on her.
NOW, THEREFORE, it is hereby
ORDERED, that the parties shall continue to share Joint Custody of L.; and it is further
ORDERED, that the Mother, K. N. shall be designated Primary Residential Parent of L. N., born March, 2013 for all purposes including use of her address for school purposes; and it is further
ORDERED, that parties are to refrain from making disparaging remarks about the other parent in the presence of L.; and it is further
ORDERED, that there shall be no Right of First Refusal and each parent shall make appropriate child care arrangements during his/her own Access time when needed; and it is further
ORDERED, that commencing September 1, 2017 all exchanges shall take place at the train station at the State University of New York at Buffalo, Main Street campus (South Campus); and it is further
ORDERED, that all communication between the parties relative to Access, including unavailability for same, L.'s welfare including school and medical related issues and the like shall be via email. The parties are to notify the other party as well as the Attorney for the Child within 10 days of this Order what email address they choose to use for this purpose; and it is further
ORDERED, that the appointment of the Attorney for the Child shall remain effective for sixty (60) days from the date of this Order; and it is further
ORDERED, that all other requests to modify the March 10, 2015 Order are hereby denied; and it is further
ORDERED, that all provisions from prior orders not modified herein remain effective.
September 1, 2017
__________________________________________
Hon. Brenda M. Freedman, JFC
GRANTED:
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