A.W. v S.C.
Annotate this CaseDecided on February 13, 2019
Supreme Court, Bronx County
A.W., Plaintiff,
against
S.C., Defendant.
7049/2017
Neville McFarlene, Esq., Law Office of Neville McFarlane, 96-09 Springfield Blvd., Suite 201, Room 5, Queens Village, NY, for plaintiff
Debbie Y. Jonas, Esq., Bronx Defenders, 360 East 161st Street, Bronx, NY NY, for defendant
Goetz Vilsaint, Esq., 930 Grand Concourse, Suite 1B, Bronx, NY, for the child
Llinét M. Rosado, J.
Plaintiff moves, via Order to Show Cause, for an Order changing a final order of custody to grant plaintiff sole custody of the parties' son; terminating child support if custody is granted to plaintiff; granting control of educational issues of the minor child to the plaintiff; granting a temporary restraining order against the custodial parent to prevent her from choosing a school other than the Yonkers School District without the assent and agreement of the plaintiff father; and termination of maintenance to the defendant because she is currently employed full time.
The attorney for the child (AFC) opposes a change of custody from the defendant to plaintiff. Specifically, the AFC argues that the issue of custody was resolved with an Order of sole legal and physical custody to the mother with the consent of the father and that that both parents have access to NLW and continue to share parental responsibilities of their son.
The defendant also opposes the motion on the ground that there is no change in circumstance to warrant a change in custody. The defendant fails to address the branch of the application that seeks termination of maintenance to the defendant.
The parties were married on April 22, 2013 and their son, NLW, was born on July 7, 2013. In 2013, the parties filed cross custody petitions and family offense petitions in Bronx Family Court. On or about August 22, 2014, the parties settled the cases with an Order of joint legal and physical custody. In May of 2015, both parties filed modification petitions. In June of [*2]2015, the parties filed cross family offense petitions. On November 12 and 30 of 2015, the parties each testified in their respective family offense petitions and the Court reserved decision until December 17, 2015, after which the trial on the custody dockets was scheduled to commence. On December 17, 2015, the plaintiff nor his attorney appeared and the defendant proceeded to testified at an inquest. The Court issued an Order of sole legal and physical custody to the plaintiff but did alter the parenting access schedule that the parties consented to in August of 2014. The Court also entered a final order of protection on behalf of the defendant and against the plaintiff. Subsequently, plaintiff filed a motion to vacate his default in both the custody and family offense matters. The Court denied the motion on March 11, 2016. On July 6, 2016, the final order of sole legal custody to defendant and parenting time to the plaintiff was modified on consent of the parties with a thorough stipulation. Both sides were represented by attorneys when they entered the stipulation and, at that time, plaintiff chose to reduce his parenting time with NLW.
Plaintiff filed this action for divorce on September 8, 2017. Notably, plaintiff did not seek a modification of the Final Order of Custody and Parenting time when he filed the instant action.
When parties seek a change " in custodial arrangements, priority, not as an absolute but as a weighty factor, should, in the absence of extraordinary circumstances, be accorded to the first child custody awarded in litigation or by voluntary agreement." see Lawrence C. v Anthea P., 79 AD3d 577, 912 NYS 2d 216, 2010 NY Slip Op. 09353 (1st Dept 2010). The burden of establishing that a modification is in the best interest of the child lies with the parent seeking the change in the prior custody arrangement. id. A parent seeking modification of a prior order of custody based on change of circumstances is not automatically entitled to a hearing and must first make a sufficient evidentiary showing to warrant a hearing. see In re Ronald S. v. Deirdre R., 62 AD3d 593, 880 NYS 2d 255 (1st Dept 2009) (citing Matter of King v King, 266 AD2d 546, 547, 698 NYS2d 906[1999]).
The Court finds that the plaintiff father has failed to present sufficient prima facie evidence of a change of circumstances which might warrant modification of custody in the best interests of the subject child. Instead, plaintiff seems to want to re-litigate old allegations from prior proceedings.[FN1] id. While it appears to this Court, that the parties "would do well to adopt a more cooperative attitude toward the other, the past deficiencies in the mother's conduct are not so great as to warrant displacing her as the primary custodial parent nor is a change in custody warranted." Lawrence C. v Anthea P., supra. The parties, while represented by attorneys, entered an extremely extensive and through stipulation of settlement. The Court cautions the parties to adhere to the stipulation. In the absence of evidentiary demonstration warranting a hearing, the Court finds plaintiff is not entitled to a hearing. see David W. v Julia W., 158 AD2d 1, 557 NYS2d 314 (1st Dept 1990).
It is hereby
ORDERED that the branches of plaintiff's Order to Show Cause seeking an Order changing a final order of custody to grant plaintiff sole custody of the parties' son; terminating child support if custody is granted to plaintiff; and granting control of educational issues of the minor child to the plaintiff is denied; it further
ORDERED that the branch of plaintiff's Order to Show Cause seeking a temporary restraining order against the defendant mother to prevent her from choosing a school other than the Yonkers School District without the assent and agreement of the plaintiff father is denied as moot as NLW now attends Wake Eden Christian Academy in the Bronx and both parties consented to NLW remaining at Wake Eden Christian Academy on September 27, 2018; it is further
ORDERED that the branch of plaintiff's Order to Show Cause seeking termination of maintenance to the defendant because she is currently employed full time is referred to Part 29 to be determined at trial; it is further
ORDERED that the parties are to appear in Part 29 on March 4, 2019 at 2pm.
This constitutes the decision and order of this Court.
Date: February 13, 2019
________________________
Hon. Llinét M. Rosado, J.S.C. Footnotes
Footnote 1:Plaintiff filed a modification petition in Family Court under Docket Numbers V-31581-13/18F and V-30666-13/18D on March 9, 2018 where he made similar allegations as in the instant Order to Show Cause. That petition was dismissed on April 4, 2018 for failure of the plaintiff to appear. See Exhibit C of AFC's Affirmation in Opposition.
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