Matter of Emanuel J. v Zielka K.

[*1] Matter of Emanuel J. v Zielka K. 2019 NY Slip Op 51667(U) Decided on October 22, 2019 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 22, 2019
Family Court, Kings County

In the Matter of a Custody/Visitation Proceeding Pursuant to Article 6 of the Family Court Act, Emanuel J., Petitioner,

against

Zielka K., Respondent.



V-00197-17/17A, B



The mother was represented by Stacey Van Malden, Esq., Goldberg & Dubin, P.C., 401 Broadway, Suite 306, New York, NY 10013, Tel. (212) 431-9380; Father was represented by Seth D. Schraier, Esq., 3647 Broadway, Suite 4G, New York, NY 10123, Phone: (914) 907-8632; and the Child is represented by Patrick Garcia, Esq, 26 Court St., Brooklyn, NY 11201, Phone: (718) 797-7155.
Javier E. Vargas, J.

Papers Numbered

Summons, Petition for Enforcement & Exhibits Annexed 1

Summons, Petition for Modification & Exhibits Annexed. 2

Exhibits and Evidence 3

In Camera Proceeding Transcript 4

Court Proceedings Recordings 5

Upon the foregoing papers, the evidentiary trial held before the undersigned, the exhibits admitted in evidence and for the following reasons, the Petitions by Petitioner Emanuel J. (hereinafter "Father"), to modify and enforce the Final Order and Stipulation of Settlement dated October 16, 2014, is granted and the Order modified in accordance with the following decision.

I.

While working together in maintenance for the Stapleton Hotel in 2000, Father met Respondent Zielka I. K. (hereinafter "Mother") and began a serious romantic relationship. They [*2]moved in together in 2001 and lived as a couple for the next 14 years in Brooklyn, New York, during which time the subject Children, Son (17) and Daughter (10), were born outside of marriage. Unfortunately, in 2013, the parties separated following Mother's filing of a domestic violence complaint against Father in the Kings County Criminal Court, which resulted in his arrest and a two-year full stay away Final Order of Protection in favor of Mother, except for visitation purposes. Father then moved to the Bronx.

The parties eventually marked the end of their relationship by settling their differences in Kings County Supreme Court. By Order and Stipulation of Settlement dated October 16, 2014, the Kings County IDV Part (Henry, J.), on consent, awarded the parties joint legal custody of the Children with Mother retaining physical custody and giving Father enumerated rights of alternate weekend day visitation, holidays and summer vacation, which would become overnight visitations upon his obtaining suitable living arrangements. The seventeen-page Stipulation of Settlement, which was signed by the parties, their counsel and the Attorney for the Children's Law Center, provided a table of contents and contained detailed provisions, including subcategories delineating the parties' custody and parenting time, daily decision making, decision making regarding educational and extracurricular activities, communication, cooperation, lateness, the Children's documents, holidays, education, homework, religious activities, and the Children's medical care.

Relevantly, the section of the Order & Stipulation labeled "Parent Cooperation" eloquently states:

The Parties agree to fully cooperate in carrying out the express written terms of this Order. And more importantly, they agree to abide by and live up to this Order's underlying spirit. The parties acknowledge and agree that the spirit of the terms and conditions of this Order are to provide the Children with a strong family support system that includes two parents that love them, and want to provide for their safety, health and welfare. The parties, therefore agree that they will place their Children's interests and welfare before everything else, and for the Children's sake they will make special efforts to set aside their feeling toward each other, and will maintain an attitude of tolerance, flexibility and good faith, even when it seems that the other parent is being less that reasonable or considerate.Each parent accepts that the Children love and care for both their Mother and Father, and that frequent continuing contact with both parents, works to their best interest. Accordingly, neither parent will make derogatory remarks about the other parent, particularly in the Children's presence, nor where the Children might overhear those remarks. In addition, neither parent will say or do anything, which might discourage the Children from spending time with the other parent.

Despite this language and the completeness of the Order & Stipulation, the Mother has utterly failed to comply with the same following 2016.

As a result, by Petitions dated January 17, 2017, Father commenced the instant proceedings against Mother in Kings County Family Court, seeking to modify and enforce the Order & Stipulation with allegations that Mother has failed to comply with the same since February 21, 2016, in that she: canceled five to ten of the Father's visits; was late for pickups and drop offs for the Children's visitation; verbally harassed him in front of the Children; withheld [*3]information regarding the Children's school, medical and vital records; provided no contact information and did not allow him to speak to or see the Children; and that she inappropriately used her building security to enforce false claims of trespassing and loitering against him at the time of visitation pickups. He also sought modification of the Order in regards to a change in the pickup and drop off location for the visitation, as well as a reiteration of the provisions contained in the parties' Order & Stipulation. Furthermore, he sought a suspension of child support until Mother exhibits compliance to the Court's Order.

Commencing on February 15, 2017, numerous court appearances were scheduled before the Family Court's assigned Judge, Hon. Sharon Bourne-Clarke. During the pendency of the case before Judge Bourne-Clarke, she assigned an Attorney for the Children - outside of the Children's Law Center - who reported on April 3, 2017 that he would support only therapeutic supervised visits for them. Judge Clarke then ordered Observation and Evaluation Visits between the Father and the Children to occur in the presence of a forensic evaluator, Dolores Andrews, L.C.S.W. Ms. Andrews submitted a comprehensive report dated June 7, 2017, which after interviewing the parents and the Children, concluded that "both subject Children have refused to meet with their Father. Attempts to encourage and reassure each child was unsuccessful. As noted, each gave details as to the reasons for their refusals."

When the parties returned to Court on August 2, 2017, Judge Bourne-Clarke scheduled an in-camera interview with the Children to take place on August 17, 2017, but which did not happen due the Attorney for the Child's absence. A status report from Ms. Andrews dated August 1, 2017 noted that visits had yet to occur. The parties appeared again on September 13, 2017, and Judge Bourne-Clarke scheduled another in-camera for October 13, 2017, which again did not take place due to the Attorney for the Child's absence. Additionally, Judge Bourne-Clarke noted that the visits have not taken place. Reports dated October 13, 2017 and December 18, 2017, from Ms. Andrews reflected that the Children had still refused to visit with Father with the Daughter explaining that "she felt with everything that is happening, her Father will take it out on them because he is mad and she is not ready to be around her Father." On February 9, 2018, Judge Bourne-Clarke adjourned the matter for trial as well as an in-camera, for May 10, May 11 and June 28, 2018; however, the matter was redirected for trial before the Undersigned due to Judge Bourne-Clarke's subsequent transfer to Kings County Civil Court. After several attempts with trial dates set and subsequently vacated, the trial promptly commenced on January 22, 2019, and ended on September 13, 2019, with an in-camera interview of the parties' Daughter.

II.

First to testify at the trial was Father, who in a bitter and somewhat arrogant manner testified that he began having day visits with the Children after the parties' separation as per the 2014 Order & Stipulation while he was looking for a suitable apartment, as overnights were supposed to occur after he obtained a permanent residence. Father, who currently works in maintenance for a preparatory school, testified that he will take the Children during the visits to the movies, parties, basketball games, restaurants, like the New Apollo Dinner, Dave & Buster's and Denny's Restaurants; and would buy them things at stores like Foot Locker, Lot-Less Closeouts Stores, Sprint and Best Buy in Brooklyn and Manhattan. He complained that the Mother was always late for the drop off of the Children and sometimes would not dress them appropriately for the weather or with clean clothes. Father testified that Mother has never provided him with information regarding the Children's education, medical providers or school [*4]activities to the extent that he did not know what schools they were attending; Mother allegedly prohibited them from sharing that information with the Father.

With respect to his relationship with his Son, Father admitted to scolding him during an incident that took place in September 2016, when his fourteen-year old Son got a "bit too social" and "overly friendly" with a male adult stranger at a Dairy Queen Grill & Chill Restaurant, exchanging phone numbers, making a date to play basketball at a later date and showing him pictures of his home. Father stated that he scolded the Son that he shouldn't be talking to strangers in that way, and the Son got mad. In another incident, Father testified that Son confronted and got belligerent with a gentleman on the subway who had sat too close to the Daughter, and Father had to intervene; afterwards, Father told the Son to "never do that shit again" in front of other commuters. Father also recalled an incident when Son stole money from him in 2013 or 2014. Thereafter, Father explained that when he attempted to visit with the Children in October 2016, he was informed that neither child wanted to come down to visit with him, prompting him to call the police and file a report against Mother to enforce his visitation. He acknowledged not texting the Mother about the visit, but calling her on several occasions without receiving a response.

Father affirmed that he continued to show up every two weeks at Mother's residence for the visitation, only to encounter the same scenario. Father engaged the police several times to enforce his visitation and filed Domestic Incident Reports against the Mother. He claimed to have been harassed by the Mother's building security guards/doormen during the pickups and was prohibited from entering the lobby area. Father claimed to be very reluctant and stated that he only visited the Children, but never called them, and then refused to visit with the Children after that. Father testified that he feels "disappointed," "flabbergasted" and "confused" about the Children's refusal to visit with him and believes that they would like to visit with him but that the Mother was "brainwashing them" with ideas not to visit with him. He denied using corporal punishment, but acknowledged hitting his Son and/or threatening to beat him if he misbehaved. He "loves [his] Son to death," but respects his own decision not to visit with Father and knows that he cannot force a seventeen-year old to visit with him.

However, Father testified that he finds it "unbelievable" that his little Daughter does not want to visit with him despite the good times they have had in the past, and would like to rekindle that relationship. On cross examination, Father acknowledged that, in July 2016, he sent the Daughter back upstairs twice after arriving to pick her up for visitation because she was wearing a "dirty sweater" or hoodie, or if they were wearing "inappropriate clothing" for the weather or visitation. He said that he would "smack [the Son] outside the head for agitating the Daughter" against him. Father reiterated that Mother totally controls what the Children do and say.

Next to testify was Father's nephew Joshua J. (18), who testified that he was present during many of the visits between Father and the Children. In 2016, Mr. J. came to 13 visits when Father would take them to breakfast, lunch and dinner whenever they were hungry during the visits. He stated that Father will discipline the Children and take "corrective action," but that he never saw Father hitting or threatening the Children. Also, Mr. J. testified that Father was patient and nice to the Children taking them to parks, movies, animated films, game places and restaurants, like Shake Shack and Chipotle. He testified that the last visit he attended was in the Summer of 2017 when they went to Battery Park, but that he has not seen the Children since then because he does not have a good relationship with their Mother. Father rested his case [*5]after that testimony, and provided GPS maps of the places he went with the Children with photos during some of the visits in 2016.

In response, Mother commenced her case testifying that the parties separated in 2013 because Father was abusive, controlling and manipulative. She was concerned about his visitation with the Children because on at least two occasions, Father had used corporal punishment against the Son, causing him to have a droopy eye, but that he never hit their Daughter. Mother entered into evidence several NYPD Domestic Incident Reports, some by her and some by the Son complaining about incidents during the pickups of the Children, including the "dirty hoodie" incident when she called the Police because Father sent the Child back to change! When the Son was about 14 or 15 years old, Mother testified that she permitted him to call the Police against Father because he did not want to go to visitation. Mother herself admitted that she was not complying with the visitation because, after an incident that took place in 2016, the Children did not want to visit with the Father. Mother shockingly acknowledged that she has never provided Father with any school information, doctors, extracurricular or any medical information about the Children, because "he never asked."

In cross examination, Mother claimed to be "the mother with superior rights," albeit she corrected herself, "I am the mother and they live with me." Mother proudly and disturbingly stated that she has "absolutely no contact with this man." Mother further testified that Daughter will make her "stomach hurt" or "play sick" in order not to go to visit with Father. Despite this, Mother testified that she never explored or engaged the Children in therapy, nor did she come to court to try to change or modify the Order & Stipulation despite her and the Children's lack of compliance. Mother claimed to believe that it is important to foster a relationship of the Children with Father, but did not do anything other than cancelling the Father's visitation. To the contrary, Mother testified that the Children had called the Police at least a dozen times because they did not want to go to visitation with Father; it came to a point that the NYPD wouldn't come to the house most of the time. Mother claimed that she was afraid to force the Children to go to visitation because "in America, we listen to the children's voice and act upon that."

The parents rested their case on May 15, 2019. Due to Mother's shocking acknowledgement of noncompliance, the Court issued an immediate Temporary Order directing the Mother to forthwith comply with the visitation and the provision of all the Children's information to the Father as clearly provided in the Order & Stipulation.

On August 12, 2019, the Attorney for the Children presented his case with testimony from the older child, the Son, who testified that he had a complicated relationship with the Father because, among other things, Father had mistreated him by belittling, criticizing him and locking him in a room to force him to study. Furthermore, the Son testified that Father "treated him like garbage" and was never nice to him during visits. He claimed that Father has also become verbally abusive and vulgar to his baby sister. On the most recent Court Order, Son was aware that he was not supposed to go on the visit but went anyway because the Daughter wanted him to go on the visit. Son admitted to calling the Police on Father at least three times which led Father to be escorted from the residence. He testified that Mother has not influenced him with respect to visits with his Father nor has she spoken badly about Father to him. He stated in an emotional manner that he does "not care" about Father.

That day and based on the Mother and Son's testimony, the Court modified the Temporary Order of Visitation as follows:

1. The Father shall have day visitation with the Child Sanai Johnson on alternate weekends on Saturday from 12:00 p.m. to 4:00 p.m. and Sunday from 12:00 p.m. to 4:00 p.m., commencing this weekend.* * *3. Mother is hereby ordered to add the Father's name to the Children's school Blue Card and emergency contact and provide him with the school names and addresses as well as their medical doctors' information by May 17, 2019.4. Mother is also ordered to provide the Father with copies of the Children's Social Security cards, passports and medical forms as soon as practicable.5. Neither of the parents nor the older Child Emanuel Johnson, Jr., is to insult or disparage the other parent to or in the presence of the Child Sanai, nor are they to discuss the pending proceeding or the existence of any court orders with the Child.6. Father is to do all pickups and drop offs for visitation at the 71st Precinct located at 421 Empire Boulevard, Brooklyn, NY, tel. (718) 735-0511.7. Mother is to have the Child there at the Precinct on time and appropriately dressed and presentable for the visit.8. Given his open hostility toward the Father, the older Child, Emanuel Johnson, Jr., is not to be present at the Precinct for the exchanges with the Child Sanai.9. If the Child is brought for visitation at the Precinct, the Father is required to take the Child for the scheduled visitation and cannot leave the Child unattended there.10. Failure to comply with this Order may subject the violator to fines in the form of counsel fees, incarceration or an immediate change of custody.

The Court was informed that Mother has complied with this Order.

Lastly, on September 13, 2019, the Court conducted an in-camera interview with the Daughter in the presence of her attorney and a court reporter. During the interview, the Undersigned introduced himself and exhorted her to answer the questions posed by the judge and her attorney to the best of her abilities, and that everything will be kept confidential. The ten-year-old Daughter, albeit cheerful and friendly, spoke in a serious way like a child much older than her ten years. In describing Father and the paternal relatives, she used descriptive terms and related circumstances that appeared to be the observations or misrepresentations of an adult or a much older child. In summary, the Daughter stated that she does not want to visit with her Father because it was "not safe" and she is scared of him. At the completion of the in-camera, the Court reserved decision and administratively adjourned the matter for the same.

III.

In order to modify an existing custody and visitation order in the absence of an agreement between the parties, a party "must show that there has been a sufficient change since the entry of the order such that modification is warranted to further the child's best interests" (Matter of Newton v McFarlane, 174 AD3d 67, 83 [2nd Dept. 2019]; see Vollkommer v Vollkommer, 101 AD3d 1108 [2nd Dept. 2012]). When adjudicating visitation rights, the court's first concern is "the welfare and the interests of the children" (Matter of Lincoln v Lincoln, 24 NY2d 270, 272 [1968]; see Matter of Goldhaber v Rosen, 119 AD3d 862 [2nd Dept. 2014]). "Visitation is a joint right of the noncustodial parent and of the child" (Weiss v Weiss, 52 NY2d 170, 175 [1981]; see McGrath v D'Angio-McGrath, 42 AD3d at 441), and the 'denial of visitation rights to a natural parent is such a drastic remedy that it should only be considered when there is substantial evidence that visitation would be detrimental to the welfare of the child' [*6](Bubbins v Bubbins, 136 AD2d 672 [internal quotation marks omitted]). 'In fact, visitation with a noncustodial parent is presumed to be in the best interests of the child, although the presumption may be overcome "upon a showing, by a preponderance of the evidence, that visitation would be harmful to the child's welfare or not in the child's best interests'" (Pandis v Lapas, ___AD3d___, 2019 NY Slip Op 07267 [2nd Dept. Oct. 9, 2019], citing Matter of Kadio v Volino, 126 AD3d 1253, 1254 [3rd Dept. 2017]; see Matter of Granger v Misercola, 21 NY3d 86, 90 [2013]).

"A court may not delegate its authority to determine parental access to either a parent or a child (see Matter of Izrael J. [Lindsay F.], 149 AD3d 630 [1st Dept. 2017]; William-Torand v Torand, 73 AD3d 605, 606 [1st Dept. 2010]). While a child's views are to be considered in determining custody or parental access, they are not determinative (see Matter of Licato v Jornet, 146 AD3d 787 [2nd Dept. 2017]). An access provision conditioned upon the desires of the children tends to defeat the right of parental access" (Matter of Mondschein v Mondschein, ___AD3d___, 2019 NYS Slip Op [2nd Dept. 2019] [citations omitted]; see Torand, id. at 606; Matter of Casolari v Zambuto, 1 AD3d 1031 [3rd Dept. 2003]). Ultimately, a court's determination regarding custody and visitation issues is based on a first-hand assessment of the credibility of the witnesses after an evidentiary hearing and is entitled to great weight and will not be set aside unless it lacks and evidentiary basis in the record (see Matter of Rulinsky v West, 107 AD3d 1507 [2nd Dept. 2013]).

Applying these principles to the matter at bar, the actions of both parents have raised a change of circumstances warranting the modification of the prior Order & Stipulation in the best interests of the Children. The record reflects that the parties lived together for approximately fourteen years in a relationship which ended in a rocky and acrimonious separation when the Children were approximately fourteen and seven years old, respectively. Since the entry of the 2014 Order, Father was initially visiting with the Children and would like to rekindle his relationship with them, but Mother has been thwarting and discouraging his visitation since 2016. Despite this Court's well-intentioned efforts to mend the relationship by engaging the Father and the Children in therapeutic visits with a social worker, numerous reports were generated expressing the Children's recalcitrant refusal to engage in those visits. Alas, it is clear from the testimony and evidence proffered during the hearing that neither parent paid much attention to the agreement that they both signed after being advised by their respective attorneys. When the parties resided together, both exhibited behaviors that were intolerable to the other. Unfortunately, through no fault of their own, the Children were part of the relationship and were greatly affected by their parents' constant discord.

Indeed, the Mother shockingly admitted that she was purposely not complying with the Order of visitation and that she has not provided Father with any school information, extracurricular or medical information about the Children. On numerous occasions, both the Mother and the Son called the police upon Father for frivolous reasons during the visitation pickups, a tactic also inappropriately utilized by the Father in order to enforce his visitation. These actions in permitting the Children to call law enforcement from their serious criminal pursuits for minor visitation and civil issues reveals Mother's lack of parental skills and a misguided selfishness, which gratuitously added a level of confrontation generally not seen in visitation exchanges. The absurdity and triviality of those calls to the police is reflected on the Domestic Incident Reports describing the minor incidents. In one Domestic Incident Report, Mother called the police stating in the report that "my kids' father do[es] not want to take them [*7]saying my daughter has on a dirty hood. Send upstairs two times to change. There is no clean hood. I am doing the wash now." Those ridiculous calls to the police have deeply affected and chilled the Father's relationship with the Children and their visitation.

However, both parents are to blame for the estrangement of the Children from the Father. It is obvious that the parties' acrimonious relationship continued to dominate their lives even after they separated. Father continuously blames the Mother for the Children's disrespect and refusal to visit without recognizing his own likely role in such conduct. Indeed, both children described Father's behavior as hostile, vulgar and abusive during visits. He refused to engage them or demonstrate interest in their basic needs, apparently taking them to places and engaging them in activities which neither of the Children wanted to pursue. In fact, Father acknowledged belittling and using corporal punishment on the Son, which could be described as excessive. Contrastingly, Father's nephew described an ideal situation where Father entertained, cared and fed the Children while taking them to parks, movies, game places and restaurants. Based on the Father's behavior during the proceedings, the Court acknowledges and finds credible the Children's version of Father's crass and nasty treatment and use of profanity.

This Court concludes that the relationship between the Son and Father spun out control due to Father's inability to appropriately parent and understand his Son during the difficult separation. Likewise, the Daughter's responses to questions posed appeared to mimic adult expressions of negative opinions surrounding Father and the paternal family in the Child's presence. Upon questioning, she could not describe or back up her alleged recollections with facts or details. The Daughter just stated that she does not want to visit with her Father because she "it's not safe" without actually pinpointing a valid reason for that fear. This Court can reasonably conclude that the Daughter's poisonous statements were not hers, but those heard from the Mother and/or the inventiveness of the Son.

However, this Court cannot and will not delegate its authority to determine the appropriateness of visitation to the desires of the Mother or the ten-year-old Daughter, despite the disdain expressed about the visitation (see Matter of Mondschein v Mondschein, 2019 NYS Slip Op; Torand, id. at 606). Nor is this sufficient reason to terminate Father's visitation or order supervised visitation at this time. In essence, the Mother testified that she did not think the Children were in any danger with the Father, but that the Children became anxious around him. It is undisputed that the Father had been involved with the Children one way or another throughout their lives, though the Mother had always been the primary caretaker. This Court cannot describe the interaction between the parents as willful. Instead, it is a pattern of behavior that developed in this family through fourteen years of unhealthy cohabitation. Both parents should benefit from counseling, as well as parenting skills training. A court has the authority to order a party to submit to counseling as a component of visitation (see Matter of Sinnott-Turner v Kolba, 60 AD3d 774, 776 [2nd Dept. 2009]).

III.

Accordingly, the Court enters the following Order, modifying the Order & Stipulation dated October 16, 2014:

1. Mother and Father are to immediately enroll in and engage in individual counseling and parenting skills training programs, and shall submit a certificate to the Court upon completion within no less than a year of the issuance of this Court order;

2. Since visitation would be in the Daughter's best interests, she is also to be enrolled and [*8]receive counseling from a therapist/psychologist to be paid by Mother or her insurance, and immediately begin at least weekly telephone contact with Father.3. Parties are to comply with the terms of the 2014 Stipulation regarding visitation with the Daughter.4. Giving weight to his "wishes, age and maturity," the Son should visit with Father at his discretion (Matter of Sinnott-Turner, supra at 776; see Matter of Cornell v Cornell, 8 AD3d 718, 719).5. Father shall cease using profanity or any vulgar terms in the Children's presence, and is to make every effort to engage in meaningful and productive visits with the Children. He should correspond by mail or electronically with the Children;6. Neither of the parents nor the older Child, Emanuel Johnson, Jr., is to insult or disparage the other parent to or in the presence of the Daughter, nor are they to discuss the pending proceeding or the existence of any court orders with the Child.7. Father is to do all pickups and drop offs for visitation at the 71st Precinct located at 421 Empire Boulevard, Brooklyn, NY, tel. (718) 735-0511.8. Mother is to have the Child there at the Precinct on time and appropriately dressed and presentable for the visit.9. Given his open hostility towards the Father, the Son is not to be present at the Precinct for the exchanges of the Father with the Daughter, unless he wants to also visit with the Father.10. If the Child is brought for visitation at the Precinct, the Father is required to take the Child for the scheduled visitation and cannot leave the Child unattended there.11. In all other respects, all remaining terms and provisions of the Final Order and Stipulation dated October 16, 2014, continue in full force and effect.12. Failure to comply with this Order may subject the violator to fines in the form of suspension of child support, counsel fees, incarceration or an immediate change of custody.

In accordance with the foregoing, this Court hereby grants Father's Petitions for enforcement and modification. The foregoing constitutes the Decision and Order of the Court.

E N T E R:

Dated: October 22, 2019

Brooklyn, New York

J.F.C.