Matter of I.V. v A.C.

[*1] Matter of I.V. v A.C. 2018 NY Slip Op 51102(U) Decided on June 14, 2018 Family Court, Kings County Vargas, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 14, 2018
Family Court, Kings County

In the Matter of a Custody Proceeding Pursuant to Family Court Act Article 6 I.V., Petitioner,

against

A.C., Respondent.



In the Matter of a Custody Proceeding Pursuant to Family Court Act Article 6 A.C.,Petitioner,

against

I.V.,Respondent.



V-06737-13/17A, B



The attorneys are: for the Mother, Anna Stern, Esq.; for the Father; and for the Child, Ita Ibok, Esq.
Javier E. Vargas, J.

Papers Numbered

Summons, Petitions, Affidavit & Exhibits Annexed 1

Notice of Motion, Affirmation & Exhibits Annexed 2

Order to Show Cause, Affirmation & Exhibits Annexed 3

Affidavit in Opposition & Exhibits Annexed 4

Reply Affirmation in Support 5

Court Proceedings Transcripts 6

AFC Closing Argument & Exhibits Annexed 7

Upon the foregoing papers and for the following reasons, the motion by Petitioner I.V. (hereinafter "Father"), for an Order modifying Respondent A.C.'s ("Mother") access schedule, is [*2]denied in accordance with the following decision. The Order to Show Cause by the Children Law Center, for its resumption of the subject Child's representation, is granted.

By Petitions for Custody in March 2013, both Father and Mother commenced the instant long-standing cross proceedings for the custody of their Child in Kings County Family Court. The Child was born out of wedlock, but the parties promptly executed an Acknowledgment of Paternity after his birth. While Father made allegations of long-term opiates drugs and alcohol addiction, depression and mental health issues against the Mother, she made allegations of domestic violence and drug abuse by Father. Even the maternal grandparents, C. and R. C., sought custody of the Child faulting both parents for their history of substance abuse and criminal issues. Given the existence of domestic violence, this matter was litigated in Kings County Supreme Court's Integrated Domestic Violence Part ("IDV") for several years.

Early on, the IDV Part appointed the Children's Law Center to represent the Child and fully participate in the contentious proceedings, which eventually after a period of three years, went to trial from March 2015 to June 2016. At the conclusion of the trial, by a 106-page Decision and accompanying Final Order of Custody and Visitation, dated August 24, 2016, the IDV Part (Henry, J.) awarded sole legal and physical custody of the Child to Father subject to a full and detailed parental access to the Mother, including alternate weekend visitation with pick-ups and drop offs at the school, holiday visitation and five weeks during the summer. Relevantly, the Order states:

The Father [] shall consult with the Mother [] prior to making any and all major decisions regarding the health, education and welfare of the Child. The parties shall communicate their opinions regarding major decisions in writing, either through email, text message, or journal and shall respond to each other's inquiries promptly. The parties shall endeavor to reach a mutually satisfactory decision with respect to any major decision and the Father [] will, in good faith, fully consider the Mother's [] opinions. If the parties are unable to reach a consensus, they shall work with a parenting coordinator who they mutually choose and agree to, which parenting coordinator shall assist them in reaching a consensus. The cost of the parenting coordinator shall be borne solely by the Father

(emphasis supplied). There is an appeal currently pending at the Appellate Division, Second Department, of the IDV determination.

By Petition dated October 18, 2017, Father commenced a family offense proceeding on behalf of the Child against Mother, claiming that she "is locking the subject child in the basement without food or light" and that the Child "is frightened." The Family Court (Bourne-Clark, J.) issued a Temporary Order of Protection dated October 18, 2018, ordering Mother to stay away from the Child and not to communicate with her, except for court-ordered visitation, and to refrain from harassing, intimidating, assaulting, stalking or committing any family offense against the Child. Upon the appearance of all parties, the Temporary Order of Protection was modified to remove the stay away and instruct Mother not to commit any family offense against the Child and appointed a new Attorney for the Child, Etta Ibok, Esq. By Order to Show Cause dated October 30, 2017, the Children's Law Center moves for an order relieving Ms. Ibok from her assignment in favor of reappointing CLC to represent the Child. Without opposition, they [*3]argue that Family Court Act § 246(b)[FN1] requires their reappointment because they represented the Child throughout the lengthy and contentious proceedings in Family Court and IDV (see Matter of Kristi L.T. v Andrew R.V., 48 AD3d 1202, 1206 [4th Dept. 2008]). No opposition has been filed by either party or the new Attorney for the Child to the CLC Motion.

By Petitions for Enforcement and Modification, and by Notice of Motion dated March 21, 2018, Father moves for a modification of the 2016 Final Order of Custody and Visitation so as to change Mother's schedule of unsupervised overnight visitation to be only agency supervised visitation, based on his concerns about Mother's fitness to care for the physical and psychological safety of the Child. Specifically, Father alleges that Mother has a "long term, consistent and continued addiction to opiates," has engaged in bizarre behavior during a recent police visit, and inappropriately punished the Child by locking her in the basement. In support of his Motion, Father attached positive drug tests results of Mother from 2013 and 2015 as well as a Police Incident Report involving a visitation drop-off incident at Mother's residence. After several appearances and a Court Ordered Investigation by the New York City Administration for Children's Services, the Father ultimately agreed to withdraw his Family Offense Petition against Mother and the TOP against her was vacated by the undersigned on May 5, 2018.

In her Opposition Papers to the Motion, Mother counters that Father's Motion is merely the latest attempt in his pattern of suspicious behavior to attempt to alienate and interfere with the Child's relationship with the Mother. Mother argues that all the incidents alleged by Father have been taken out of context and greatly exaggerated as evidenced by the fact that the Court-Ordered Investigation did not reveal any damming information, other than that the Child enjoys her visits. Mother does acknowledge that she is still in treatment for her past addiction problems by providing correspondence from her physician stating that she has not relapsed and that "she has been consistently coming to her appointments every month and her urine has been consistent with her prescribed medications."

In her lengthy "Closing Argument," the Attorney for the Child opposes the entry of any Order of Protection against the Mother on behalf of the Child as unnecessary and retaliatory, and essentially supports the continuation of Mother's visitation with the Child, albeit recommending that her schedule be modified so that the exchanges take place at Father's residence and not at the Child's school. Importantly, the Attorney for the Child affirms that she is a healthy, happy, sociable and well-mannered student, who loves both parents and has exhibited no problems or issues at school. Upon the reassignment of Judge Sharon Bourne-Clarke to Kings County Civil Court, the undersigned took over presiding this proceeding and, after reading the papers, respectfully disagrees with Father's arguments.

It is well settled that "the natural right of visitation jointly enjoyed by the noncustodial parent and the child is more precious than any property right" (Matter of Ciccone v Ciccone, 74 AD3d 1337, 1338 [2nd Dept. 2010], quoting Resnick v Zoldan, 134 AD2d 246, 247 [2nd Dept. 1987]), which should not be denied absent "substantial evidence that visitation would be detrimental to the child" (Vanderhoff v Vanderhoff, 207 AD2d 494, 494-495 [2nd Dept. 1994]). "Modification of an existing court-sanctioned custody or visitation arrangement is permissible [*4]only upon a showing that there has been a change in circumstances such that a modification is necessary to ensure the continued best interests and welfare of the child" (Matter of Guma v Lennard, 160 AD3d 952 [2nd Dept. 2018], quoting Matter of O'Shea v Parker, 116 AD3d 1051 [2nd Dept. 2014]; see Matter of Cusano v Coitino, 155 AD3d 722, 723 [2nd Dept. 2017]). "A parent seeking a change of custody [or visitation] is not automatically entitled to a hearing; rather, he or she must make an evidentiary showing of a change in circumstances demonstrating a need for a change of custody in order to insure the child's best interests" (Matter of Feliciano v King, ___AD3d___, 2018 Slip Op 02618 [2nd Dept. April 20, 2018]; see Gentile v Gentile, 149 AD3d 916, 918 [2nd Dept. 2017]; Matter of Ruiz v Sciallo, 127 AD3d 1205, 1206 [2nd Dept. 2015]).

Applying these principles to the case at bar, Father's motion must be denied. As a threshold matter, the parties were required by Judge Henry's Final Order of Custody and Visitation to engage the services of a Parenting Coordinator in order to resolve any dispute between them involving the "welfare of the child." It is undisputed that Father has failed to even attempt to follow that procedure by providing proof that he contacted Mother about his visitation concerns, or get the Parenting Coordinator at his own expense, which appears to be a condition precedent to the bringing of any dispute to the Court. That procedure was set up by Judge Henry precisely to prevent the type of unrelenting and contentious litigation previously — and currently — engaged in by the parties. Aside from failing to comply with that precondition, Father has failed to make an evidentiary showing that there has been a change in circumstances sufficient to warrant a change in Mother's visitation from unsupervised to supervised.

To the contrary, Father is merely rehashing the same arguments and providing mostly the same evidence already considered in 2016 by IDV in its lengthy trial and determination. Other than providing those dated materials, the unsubstantiated and conclusory allegations in his Petition and Motion are insufficient to warrant a hearing (see Matter of Chichra v Chichra, 148 AD3d 883, 884 [2nd Dept. 2017]; Matter of Ali v Hines, 125 AD3d 851, 851-852). This conclusion is a fortiori given the relatively recent full trial where similar allegations were fully aired and addressed by Judge Henry, whose words about Father's "lack of compassion," "distrust and disdain for the Mother" appear to resonate with the undersigned. Moreover, contrary to Father's contentions, the Attorney for the Child affirms that the Child is not having problems at school after spending time with each parent — despite minor lateness issues - and that she is a "happy kid who acts age-appropriate," is sociable, polite and well-mannered. According to her, the Child is appropriately dressed for the weather and brings lunch/snacks to school, regardless of which parent drops her off at school. Nor did the Court Ordered Investigation reveal any serious problems with the Child or with the Mother's caretaking abilities. No change of Mother's visitation schedule is, therefore, warranted.

In accordance with the foregoing, this Court hereby denies, without a hearing, Father's Motion in its entirety, and dismisses his supplemental Petitions. Mother's Enforcement and Modification Petitions are similarly dismissed. The Court is granting CLC's Motion, on consent, relieving the Attorney for the Child, Etta Ibok, Esq., and reappoints the Children's Law Center to represent the Child in all further proceedings, if any (see Family Court Act 246[b]). The court appearance date of August 13, 2018 is hereby cancelled. The foregoing constitutes the Decision and Order of the Court.

E N T E R:

Dated: June 14, 2018

Brooklyn, New York

J.F.C. Footnotes

Footnote 1:Family Court Act § 246(b) provides that: "In making an appointment of an attorney for a child pursuant to this section, the court shall, to the extent practicable and appropriate, appoint the same attorney who has previously represented the child."