Matter of AB v TD
Annotate this CaseDecided on December 4, 2019
Family Court, Bronx County
In the Matter of a Child Custody Proceeding Under Article 6 of the Family Court Act, AB, Petitioner,
against
TD, Respondent.
XXXXX
Appearances of Counsel:
Martin Mohr, Esq., Bronx, New York, for Petitioner
Edward Rinaldi, Esq., Bronx, New York for Respondent
Aija M. Tingling, J.
The mother and father of the subject child, M.B. (06/21/17), have each filed a petition pursuant to Article 6 of the Family Court Act, seeking sole legal and physical custody of the subject child.[FN1] Trial was held and testimony was taken on August 29, 2019 and October 23, 2019.
Petitioner's Testimony
Petitioner is the father of M.B. (2yrs old). The parties met while employed at the United States Postal Service. Respondent denied the pregnancy for several months, however, after the subject child was born paternity was established on November 22, 2017. Thereafter, Petitioner sought sole legal and physical custody of the child, as he has a more flexible work schedule, or in the alternative, one day of parenting time a week.
Petitioner testified that he resides in a studio apartment and pays $214/month in rent. He has a crib for the subject child and has the means and ability to provide food and clothing for the child and take the child to any appointments as necessary. Currently, Petitioner is employed as a [*2]cab driver.[FN2] While his hours vary based on need, he only works on weekends. He testified that he can set his own hours of work, but then later testified that his employment does not allow him any flexibility in his schedule. Petitioner testified that if granted sole custody, he would change jobs to work around a child care schedule and "figure it out" by relying on either Human Resources Administration (HRA) to provide child care options or on Respondent's child care voucher being transferred to him. Petitioner is aware that being awarded sole legal and physical custody of the subject child would result in the child being separated from the child's siblings. However, Petitioner maintains he would continue to foster a relationship between the children if granted custody and would offer liberal parenting time to Respondent, with alternate holidays and split summer and school breaks.[FN3]
In the alternative, Petitioner would accept parenting time one day a week, Wednesday to Thursday, with pick up and drop off at daycare or the 40th precinct. If he is not granted custody, Petitioner is only seeking one day of parenting time because he fears Respondent would not pick up the child at the end of his parenting time, causing him to lose employment and possibly become homeless, because he cannot arrange adequate child care. He recalled an incident in August 2018, where he described that Respondent "went ghost" and did not pick up the child at the end of His parenting time, leaving the child with him for twelve days, causing him to lose employment, because he did not have child care.
At the time of trial, Petitioner had not seen the child since December 2017, because he could not follow the temporary court order for visitation, that order provided him with parenting time alternate weekends and alternate Tuesdays through Thursdays. Petitioner was questioned as to why he has not made any changes to his work schedule to comply with the order in place, with no response. Petitioner was also questioned about his ability to work weekdays and his income earning potential during week days, as opposed to weekends. However, Petitioner became evasive and deceptive and provided no evidence or reason why he was unable to work week days as opposed to weekends or some combination thereof. Instead, Petitioner testified that he could not understand why Respondent would not just follow the original arrangement of Wednesday 9:30AM to Friday 9:30AM when she has had no issues with child care over the past eight months.
Respondent's Testimony
Respondent is the mother of the subject child M.B. (2yrs old). They reside in a two-bedroom apartment with her three other children. She is employed with the United States Postal Service but has been on maternity leave since January 2019. Prior to her maternity leave Respondent worked approximately 40-72 hours/wk and weekends. Her only day off was Monday. The subject child was enrolled in daycare during the week and on weekends, would obtain the assistance of relatives for child care.
Respondent testified that she has been the primary caregiver for the subject child since birth. When the subject child was eight days old, the Administration for Children's Services (ACS) became involved with the family, after the child fell out of her arms while she was [*3]sleeping. ACS offered Respondent various parenting services, including a child care voucher, which she still uses for child care for the subject child.
Prior to this litigation, Petitioner would come to her home to visit with subject child or take the child on the weekends. The parties even agreed to change the child's last name to reflect the same as Petitioner. However, issues began between the parties when Petitioner began causing "drama" at her place of employment and then stopped spending time with the subject child. After coming to court and obtaining temporary orders of visitation, Petitioner only availed himself of one visit. He told Respondent he could not exercise parenting time on the days set forth by the court. Respondent attempted to work out a different schedule with Petitioner outside of court, however he refused, stating he would not do it unless it was court ordered.
Respondent refutes Petitioner's allegations that she "went ghost" during the summer of 2018. Respondent explained that at that time, Petitioner had parenting time from Tuesday to Thursday and wanted to leave the child in day care during those days, instead of spending time with him. She testified that her day care provider voucher was only supposed to be utilized when the child was in her care and not Petitioner's, which lead to multiple issues between them. Respondent testified that Petitioner would drop the child off at daycare during his parenting time but on Wednesdays, child care was only half a day and Petitioner would arrive 5 hours late, resulting in a $300 fee. Respondent did not pay the fee since it was not her day to be with the child, and the child was not allowed to return to that daycare. Respondent acknowledges that on one occasion, she did not pick up the child from daycare after he was dropped off by Petitioner earlier that day, but it only led to Petitioner keeping the child for one extra day, not twelve.
During cross examination, Respondent admitted that the child is not in daycare and she has been keeping him home with her while she has been on maternity leave. Respondent was evasive and non-responsive concerning the ability to work out a schedule that accommodated Petitioner's requests for parenting time, despite the fact that the child has been out of daycare and home with her since January 2019, while she has been on maternity leave.
Respondent already has sole legal and physical custody of her other children and is asking for the same for the subject child. If granted sole custody, Respondent will foster a relationship between Petitioner and the subject child and offer Petitioner liberal parenting time during the week and alternate weekends.
Analysis:
"Any court in considering questions of child custody must make every effort to determine what is for the best interest of the child, and what will best promote its welfare and happiness." Eschbach v. Eschbach, 56 NY2d 167, 436 N.E.2d 1260 (1982). In determining what is in the child's best interests, the court must consider multiple 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 effect an award of custody to one parent might have on the child's relationship with the other parent."[FN4] The custody determination must be supported by a sound and substantial basis in the record. Lisa W. v. John M., 142 AD3d 879, 38 N.Y.S.3d 148 (1st Dept. 2016).
The court encourages joint custody where parents are amicable. However, joint custody is not viable "where the parties are antagonistic towards each other and have demonstrated an inability to cooperate on matters concerning the child."[FN5]
The entire issue surrounding this case has been the issue of child care. The court finds the testimony of both parties to be self-serving and neither to be wholly credible. In efforts to level the playing field, the parties were granted a parenting time schedule which accommodated some of both of their requests, including weekdays as requested by Petitioner, and alternate weekends as requested by Respondent.
Petitioner has consistently asked for four days of parenting time, which he believed would enable home to arrange child care. More specifically, Petitioner believes if he were to obtain sole custody of the child, Respondent's child care voucher would be transferred to him allowing him to provide child care for the subject child, therefore alleviating the issues between the parties, while Respondent believes the parties should share the responsibility of child care and parenting time. However, despite being granted an extraordinary amount of parenting time under a temporary order, which provided for more than four days a week, Petitioner has failed to exercise any visits since December 2017. Why? because he did not want weekend parenting time.
His reasoning for being unable to exercise weekend parenting time has no sound substantial basis or reasoning in the record and has resulted in him not seeing the child for two years. He testified he has a flexible work schedule, but then testified he can only work weekends. He became evasive when asked who set his work schedule, what his earning potential is on weekdays as opposed to weekends, and what he does during the week when he is "unable to work."
Overall, Petitioner's motives in seeking sole legal and physical custody are unclear and do not appear to promote the best interest of the child. Petitioner provided no testimony or evidence as to why it would be in the child's best interest to grant him sole legal and physical custody or his ability to care for the child, who he has chosen not to see for two years because he did not want weekend parenting time.
As to Respondent, she has been on maternity leave since January 2019 and has kept the subject child home with her since that time. Her only response to Petitioner's request to have the subject child Wednesday to Friday as originally agreed to before litigation, was a vague "it depends what I have to do." This provides no valid explanation as to why the parties could not have returned to their original schedule of Wednesday to Friday, since the child is not in daycare.
Given the testimony and actions of the parties during trial and the pendency of this litigation, it does not appear that the parties are able to make decisions for the child jointly.[FN6] [*4]Both parties have continuously showed their unwillingness to co-parent and/or coordinate their schedules for the sake of the subject child. Respondent has made little to no efforts to co-parent with Petitioner, and Petitioner has failed to exercise any of parenting time, since December 2017, because it included weekend parenting time.
Holding
The actions displayed by Petitioner and Respondent both show lack of concern for the best interest of the child. Nevertheless, this court finds that it is in the best interest of the child to award sole legal and physical custody to Respondent, Tonia Drumgoole, who has demonstrated the ability to meet the child's educational, medical and emotional needs and as of late, to foster a relationship with Petitioner. Furthermore, the subject child has four other siblings in the home and the court is reluctant to separate the siblings absent extraordinary circumstances.[FN7]
IT IS HEREBY ORDERED that the petition for sole legal and physical custody filed by Petitioner, Anthony Boyd is DENIED and the petition for sole legal and physical custody filed by Respondent, Tonia Drumgoole is GRANTED;
IT IS FURTHER HEREBY ORDERED that,
Petitioner, Anthony Boyd, is granted independent access to the subject child's school and medical records;
Respondent is granted parenting time with the subject child as agreed and arranged by the parties.
Dated:
ENTER:
_____________________________________
Hon. Aija M. Tingling Footnotes
Footnote 1:Although the supplemental violation petitions filed by both parties were withdrawn/consolidated with the petitions for custody, the court has given appropriate weight to the allegations set forth therein.
Footnote 2:Petitioner is an independent contractor.
Footnote 3:Petitioner is only concerned with the child's birthday, Mother's Day, Father's Day, Christmas, Thanksgiving and New Year's.
Footnote 4:Edwards v. Rothschild, 60 AD3d 675, 677, 875 N.Y.S.2d 155, 158 (2009).
Footnote 5:Edwards v. Rothschild, supra. See Lee v. Fitts, 147 AD3d 1058, 47 N.Y.S.3d 468 (2nd Dept.); See also Victoria H. v. Tetsuhito A., 110 AD3d 636, 637, 974 N.Y.S.2d 56, 57 (1st Dept. 2013).
Footnote 6:See Edwards v. Rothschild, 60 AD3d 675, 676—77, 875 N.Y.S.2d 155, 157—58 (2009), Joint custody is encouraged where parents are amicable, however, joint custody is inappropriate "where the parties are antagonistic towards each other and have demonstrated an inability to cooperate on matters concerning the child."
Footnote 7:Maher v. Maher, 1 AD3d 987, 988, 767 N.Y.S.2d 179, 181 (4th Dept. 2003)
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