Matter of SB v AS

[*1] Matter of SB v AS 2020 NY Slip Op 50121(U) Decided on January 22, 2020 Family Court, Bronx County Tingling, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 22, 2020
Family Court, Bronx County

In the Matter of a Child Custody Proceeding Under Article 6 of the Family Court Act SB, Petitioner,

against

AS, Respondent.



XXXXXX



Joseph Donohue, Esq., for Petitioner

Lee Coppage, Esq., for Respondent

Cassandra Celestin, Esq. Children's Law Center for the subject child
Aija M. Tingling, J.

Both mother and father have filed a petition pursuant to Article 6 of the Family Court Act, seeking sole custody of the subject child S.S. (06/17/13). Trial was commenced on September 10, 2018 and testimony continued on October 31, 2018; November 11, 2018; January 4, 2019; February 25, 2019; April 23, 2019; June 5, 2019; July 17, 2019; July 18, 2019 and July 29, 2019. The court also conducted an in camera interview of the subject child on July 10, 2019.

Summary of Arguments

Petitioner mother,[FN1] argues that she has a stable home and steady job and is the better suited parent to provide for the child's day to day needs. Petitioner argues that Respondent father is unemployed, does not have a home of his own and as he is currently residing in the home of the paternal grandmother with whom he has a tumultuous relationship. Additionally, he is unable to control his emotions and unwilling to co-parent.

Respondent argues that he has been the primary caregiver of the subject child for the past three years, after the child was placed with him by Maryland Social Services. He argues that Petitioner consistently fails to follow court orders and is mentally unstable making her unfit to be the custodial parent.

Attorney for the child (AFC) argues that the child wishes to reside with the Petitioner; that neither parent is stable, neither parent has demonstrated an ability to co-parent and neither parent has demonstrated a likelihood of fostering a relationship with the non-custodial parent. [*2]Notwithstanding, Petitioner is able to provide a more positive home environment for the subject child. While the subject child has been in the care of Respondent, he has failed to properly attend to the child's school and medical needs. Further, his behavior and inability to control his emotions and outbursts throughout the trial is concerning, coupled with acts of domestic violence against Petitioner and others supports an order of custody to Petitioner, which reflects the wishes of the child.

Findings of Fact

The court had the opportunity to observe the demeanor of the parties and witnesses and to hear their testimony and assess their credibility. The following findings of fact are made based on relevant and material testimony and evidence presented during the fact finding.

Petitioner's Testimony

Petitioner is the mother of the subject child S.S. (Age 6). She met Respondent in Maryland in 2010, whom she dated on and off. The relationship did not last due to incidents of domestic violence (DV) several of which were recounted by Petitioner during her testimony.[FN2] The subject child was born in 2013 and according to Petitioner, Respondent had no communication with her or the child from the child's birth until early 2014. After resuming communication but following another DV incident in February 2014, Respondent again ceased communication with Petitioner and the subject child.

In November 2015, while still living in Maryland, Petitioner was arrested for failure to appear on a traffic violation. Petitioner asked Respondent to retrieve the subject child and keep her until she was released from custody, while she arranged for her other children to stay with their respective fathers or paternal relatives. The parties agreed that the subject child would be returned to Petitioner upon her release. However, Respondent suggested Petitioner move to New York to reside with him and the child, since she had no heat in her home and her other children were being cared for. She agreed to stay with Respondent in New York, an arrangement which lasted for one month.

In January 2016, Respondent pulled a gun on Petitioner, after which she fled his home leaving the subject child, who was asleep. Petitioner returned to Maryland, where she stayed with a friend because her home still had no heat. In February 2016, Petitioner's home burned down, and Petitioner began living out of her car. During that same time, Petitioner received a call from Respondent and the paternal grandmother to come retrieve the subject child, but she was unable to because her house burned down. Petitioner did not return to New York until April 2016, at which time she intended to enter a New York shelter with the subject child. However, after verbal altercation with Respondent, Petitioner and the subject child returned to Maryland and lived out of a hotel.

After a few weeks of living in the hotel, Petitioner sought assistance from the Department of [*3]Social Services (DSS). DSS removed the child from her care, placed her in the care of Respondent and closed the case without allowing Petitioner an opportunity to appear in court and demonstrate that she was accepted into a shelter. Since that time, the child has remained in Respondent's care in New York. Petitioner visited the child in New York regularly and provided weekly/biweekly financial support for her, however Respondent would not allow her to have unsupervised contact with the child. The parties made a verbal agreement that once Petitioner was stable, the subject child would be returned to her in Maryland. However, after Petitioner obtained a new home, Respondent refused to return the child, causing Petitioner to file for custody and discontinue her financial support for the child.

During the pendency of the case, Petitioner was granted court ordered parenting time and daily phone contact with the subject child. The parties would also make additional arrangements outside of court, which Respondent would propose as a condition to seeing the child. On several occasions, she and Respondent engaged in social and sexual activities, which Petitioner testified she only did in order to see the child. She recounted an incident in November 2018, when under the pretense of seeing the subject child, Petitioner went to the hotel to meet Respondent and spend time with the child, but the child was not present. Respondent assured Petitioner that she could see the child in the morning. During the course of the night, an altercation ensued in which Petitioner sustained a black eye. [FN3]

Petitioner believes Respondent uses the child as a form of control over her. She also testified that she has observed the child exhibiting improper behaviors including bullying, hitting and acting out when she does not get her way, in addition to having unaddressed dental conditions and inadequate living arrangements.

Petitioner admitted that during the pendency of the case, she did not always follow court orders setting the parameters for her parenting time.[FN4] Nevertheless, if awarded sole custody, she testified that she will foster a relationship between the child and Respondent. Petitioner testified that she now has the means and ability to care for the child's medical, educational and emotional needs. Petitioner is currently employed as an executive assistant at Billwood Properties in Maryland and can provide food and shelter for the child without assistance of social services. Petitioner resides in a five-bedroom home, with her four other children, with whom the subject child shares a great relationship. The subject child would have her own bedroom, dresser, television and toys.

Respondent's Testimony

According to Respondent, he resided in Maryland with Petitioner and the subject child from her birth until she was approximately three months old. Sometime thereafter, Respondent relocated back to New York and would see the child intermittently. The child came into Respondent's care in 2015 when he received a call from Maryland police, that the child needed to be picked up, following Petitioner's arrest. He testified that Petitioner left the child in the care of a drug addict pending his arrival to retrieve her. The parties had subsequent conversations about Petitioner becoming stable before the subject child would return to her.

The child was still in the care of Respondent until April 2016, when Petitioner came to visit the child in New York, then fled to Maryland with the child when Respondent went to work. Two weeks later, Respondent received a call from Maryland DSS that the subject child had been placed in foster care and needed to be picked up. Respondent drove to Maryland to retrieve the child and she has remained in his care and custody to present. Respondent testified that Petitioner has provided little to no financial support since the child has been in Respondent's care.

Prior to this litigation, Petitioner had frequent and liberal visits with the child in New York. At times Petitioner would come alone and other times Petitioner would bring her other children. Respondent testified that while he has never interfered with Petitioner's access to the subject child, he did not permit Petitioner to take the child to Maryland due to his concerns about her decision-making abilities. He recounted an incident where the child was struck with a cell phone in the head while visiting Petitioner in Maryland. Thereafter, Respondent only consented to visitation between the child and Petitioner in New York. He recounted another incident, where Petitioner violated a court order granting her parenting time in Maryland, by failing to return the child at the end of her visit and obtaining an ex parte order of protection and temporary custody of the subject child from Maryland, while the matters in New York were still pending.

Respondent admitted that while this matter has been pending, he and Petitioner "partied," interacting socially and romantically, in hotel rooms he would book for them without the child being present. He testified that he never forced Petitioner to stay at the hotel with him and she never appeared uncomfortable or expressed any discomfort during these interactions. Only when Respondent denied Petitioner's request to take the child back to Maryland, did issues arise between the parties.

Respondent and the subject child reside with the paternal grandmother in a two-bedroom apartment. The paternal grandmother has her own room, while Respondent and the child share the second bedroom. Respondent provides the child with food, clothes and toys and also washes the child's clothes and takes her to school daily. Although the paternal grandmother pays the rent, Respondent contributes to the household for minimal things. Respondent is currently self-employed and picks up odd jobs laying floors approximately once per month. Additionally, Respondent collects bottles to support himself and the child.

Since the child has been in his care, Respondent has enrolled the child into a private school and pays the tuition without any financial contribution from Petitioner. Respondent attends parent teacher conferences and school events and assists the child with her homework. Respondent admitted there were times the child was late to school due to busing issues and there were times the child was absent from school when he was unable to pay the tuition. Respondent also takes the child to all of her medical appointments.

Respondent has also enrolled her in dance, painting, and tennis. He testified that she also enjoys riding her scooter and attending play dates with other children in the neighborhood. If granted custody, he will foster a relationship between the child and Petitioner. He also does not object to Petitioner having independent access to the child's school and medical records, attending school and religious events for the subject child.

Forensic Evaluator, Dr. Peter Wolff (10/31/18 -11-13/18)

Dr. Wolff, an expert witness in the field of psychology, was assigned by the court to conduct a [*4]forensic evaluation of the parties.[FN5] For his evaluation, Dr. Wolff conducted interviews of Petitioner, Respondent, the subject child and collateral resources including the paternal grandmother, the child's maternal siblings and the child's school administrators. He was called as an expert witness at the time of trial.

Dr. Wolff testified that Petitioner presents as more stable than Respondent and opined that the child should be returned to the care of Petitioner, who could provide a better emotional and developmental environment for the child, and also because it is in line with the wishes of the child. He described Petitioner as rational and organized, but at times overwhelmed. He also observed that the child has a significant attachment to Petitioner.

Dr. Wolff described Respondent as cooperative and "charming". However, when a conflict arises or a situation occurs with which Respondent does not agree, Respondent loses self-control, becomes angry and begins to rant and rave. Dr. Wolff also testified that the child's school indicated the child had exhibited concerning behaviors in school which could either be attributable to her separation from Petitioner or because she was mirroring similar behaviors of Respondent. He also noted that Respondent is unemployed and resides in the home of paternal grandmother, who appears to only allow Respondent to remain in her home for the sake of the subject child. While Dr. Wolff testified that he had no bias towards Respondent, he did express a concern about Respondent's parental ability if the child remained in his care

Dr. Wolff acknowledged that the child shares a great relationship with her maternal siblings and the paternal grandmother, with who she currently resides; however, he opines that the child should be returned to the care of Petitioner. Although there will be a disruption and separation with the child, Respondent and the paternal grandmother, it will not outweigh what he opines to be the negative effects of the child remaining in Respondent's care.

Paternal Grandmother (hereinafter PGM)

PGM is a retiree. She testified that Respondent and the subject child have shared a bedroom in her two-bedroom apartment for the past three or four years. She does not request or require any financial contribution from Respondent for the household. She testified that Respondent is currently unemployed and supports himself and the child financially with money he earns from "odd jobs." With the money, he earns he buys groceries and clothing for the child and pays her tuition for Holy Rosary Catholic School, where she attends elementary school.

PGM testified that Respondent assumes the responsibility for all of the child's day to day needs, which include cooking for the child, bathing the child, getting her ready for and taking her to school, taking her to the library and scheduling play dates; "all the things a mother would do". Contrarily, in an outburst she shouted "I've done everything for that little girl," while attempting to walk out of the courtroom during her testimony in a fit of rage against Respondent and counsel for Petitioner.

She "vaguely" recalled expressing to Dr. Wolff and the Administration for Children's Services (ACS), that she would like for Respondent to get his own place and stated that when Respondent did not listen to her rules, she did ask him to vacate her apartment. When questioned about her relationship with Respondent, PGM became evasive and hostile. She begrudgingly acknowledged after being shown documents, that between 2014 and 2017, she filed several [*5]family offense petitions against Respondent and received orders of protection against him.[FN6] PGM also acknowledged that she filed several domestic incident reports against Respondent and that the child might have been present during one or more of the incidents. She has never observed Respondent place the child in any danger, but she has observed him fuss at or spank the child, as a method of discipline, which she described as "nothing I wouldn't do."

Nevertheless, she enjoys helping him and assisting in taking care of the subject child and would do anything for her. She testified that the subject child loves Respondent and shares a great relationship with him and her. PGM has also had an opportunity to observe Petitioner and the subject child and noted that the child loves her mother as well. She testified that she has never interfered with Petitioner's ability to speak with the subject child. However, she changed her telephone number after one of the court appearances, because Petitioner began calling PGM's phone fifty to sixty times per day.

Child's Maternal sibling (MS)

MS is an adult maternal sibling of the subject child who resides in Maryland with Petitioner and three other siblings. MS shares a happy sisterly relationship with the subject child. She testified that the subject child resided with them from birth until she was approximately two or three years old. Respondent also lived with the family for a period of time after the subject child was born.

MS described the time that Respondent lived with them as being a "toxic environment." She testified that Respondent would bicker with Petitioner, throw temper tantrums and call the other children derogatory names. Many of the incidents occurred prior to the subject child's birth, however the name calling, and bickering continued until Respondent left the home after the subject child was born.

She never observed Respondent become physical with Petitioner prior to the birth of the subject child. However, in November or December 2018, MS observed her mother return home from New York with a black eye and marks all over her face.

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."[FN7] 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).

For the most part, the court finds that the both parties possess equal ability to care for the child. Respondent has had the child in his custody for the past three to four years without any allegations or findings of abuse or neglect, having had her enrolled in school, and according to [*6]him, other extracurricular activities. Likewise, Petitioner, has obtained steady employment and stable housing where the subject child would have her own room and be reunited with her maternal siblings.

Nevertheless, neither the parties, nor the witnesses were fully credible. Petitioner and Respondent displayed behaviors and engaged in actions in and out of court that call into question the ability and fitness of both of them to be the custodial parent.

Petitioner, testified that if given custody, she would foster and maintain the relationship between the child and Respondent. However, the court notes that Petitioner was held in contempt for violating court ordered parenting time. On more than one occasion, Petitioner failed to return the child at the conclusion of her time, resulting in Respondent having to file a writ of habeus corpus for the child's return to the jurisdiction. On another occasion, Petitioner obtained a temporary order of custody from Maryland, while this custody matter was pending. As a result of her contempt, the court takes a negative inference against Petitioner concerning her ability to adhere to court orders.

The court does not find credible, the testimony of Respondent and the paternal grandmother, that Respondent solely assumes all financial responsibility for the subject child. Respondent is unemployed and has no income. Although he has the subject child enrolled in a Catholic School, due to his lack of employment, he struggles to pay the tuition, resulting in the child missing school when tuition payments cannot be made. He resides with the paternal grandmother which appears to be for the sake of providing the child with a stable home while she has been in Respondent's care. It is well-documented that Respondent and the paternal grandmother have a volatile relationship, the paternal grandmother having filed several family offense petitions against Respondent and having had to involve the police for domestic disputes with Respondent, some of which the child was present for.

What is more concerning, is the behavior of the Respondent. Much of the testimony concerning Respondent centered on his lack of ability to handle oppositional situations in a rational or mature manner. Actions and behaviors supporting this conclusion were on full display before the court by both Respondent and the paternal grandmother. On several occasions throughout the course of the fact-finding hearing, Respondent had to be admonished about his disruptive and disrespectful behavior to the court, staff and counsel, to which he would respond by turning his head, putting his head down on the table, storming out of the courtroom in the middle of the proceedings or he would be asked to leave the court room. The paternal grandmother also displayed her own lack of self-control, when during one of the Respondent's tantrums, she began yelling at him from the witnesses stand, and subsequently attempted to leave the courtroom during her testimony before being warned of being held in contempt of court. Such actions gave the court a slight glimpse of the interaction between Respondent and the paternal grandmother and what the home environment of the child is like. Both Respondent and the paternal grandmother conceded that the subject child has been present during their verbal altercations and possibly once when the police were called to intervene.

Custody and/or visitation has been denied for a parent whose uncontrolled anger and outbursts have been found to be detrimental to the child and not in the child's best interest.[FN8] In Jared CC v. Marcie DD, the court granted sole legal and physical custody to the father, holding that "the [*7]child's repeated exposure to the mother's violent temper has negatively impacted the child's emotional and psychological well-being."[FN9] In Simpson v. Simrell, a parent was denied unsupervised visits where the court specifically noted "[t]he Court is frightened by the hostility and uncontrolled anger displayed by [respondent] in the Court, including his outbursts here,".[FN10] Likewise, in Chilbert v. Soler, the court concluded that a father's conduct exhibited his inability to control his behavior and held that "[a]lthough there is no direct evidence that [the father] had ever directed his anger at his daughter or had harmed her in any way ..., his inability to control his anger in the presence of his daughter is detrimental to the child's best interest[s].[FN11]

Decision

The court acknowledges that Respondent has cared for the child since 2016. However, Respondent has been unemployed and financially insolvent, maintains tumultuous relationship with the paternal grandmother, who has allowed him to reside with her because of the child, and is unable to address oppositional situations in a mature and rational manner, creating a toxic environment that does not promote the bests interests of the child. This conclusion is further supported by the in camera interview of the child.

The court finds Petitioner's testimony to be credible that she is gainfully employed, has suitable housing and can adequately care for the subject child, physically, educationally, medically and emotionally. Respondent conceded that the parties agreed the child would be returned to Petitioner once Petitioner re-established herself and became stable and has acknowledged that the child misses and wants to be with Petitioner.

In consideration of the testimony, evidence, forensic evaluation, in camera interview of the subject child and weighing the relevant factors, the court finds that it is in the best interest of the child to award sole legal and physical custody to Petitioner. The court has considered joint legal custody and has determined that it is not a viable option for these parties.[FN12]

Holding

Based on the foregoing, IT IS HEREBY ORDERED that:

The petition for sole legal and physical custody filed by Petitioner is GRANTED; HOWEVER, the child will remain with Respondent until the end of the 2019-2020 school year.See the parenting schedule below.

The petition for sole legal and physical custody filed by Respondent is DENIED; HOWEVER, the child will remain with Respondent until the end of the 2019-2020 school year.See the parenting schedule below.

IT IS FURTHER HEREBY ORDERED that,

Respondent father is granted independent access to the subject child's school and medical records;

Each party is entitled to have daily uninterrupted Facetime, video chat/phone contact with the subject child to initiate between 7PM and 7:30PM when the child is with the other parent. This time is not to interfere with the child's regular bedtime or be ended abruptly by the parent who has physical care of the child at the time of the call.

Until the end of the 2019-2020 school year, the child will remain with Respondent and Petitioner will have parenting time with the child as follows:

Petitioner will have parenting time with the child from February 15 — February 17, 2020.

Petitioner will pick up the child curbside Respondent's home on February 15, 2020 at 12PM and return the child February 17, 2020 at 12PM. Petitioner and the child must remain in New York for this visit.

Petitioner will have parenting time with the child from April 11, 2020 — April 18, 2020.

Petitioner will pick up the child curbside Respondent's home on April 11, 2020 at 12PM and MUST return the child on April 18, 2020 at 12PM.

Petitioner will have parenting time with the child on May 10, 2020 from 10AM to 7PM.

Pick up and drop off curbside of Respondent's home. Petitioner and the child must remain in New York for this visit.

The child will remain with Respondent until August 1, 2020. Petitioner will pick up the child curbside of Respondent's home on August 1, 2020 at 12PM and physical custody will be transferred to Petitioner.

ORDERED: Parties shall alternate holiday parenting time and school breaks as follows:

Thanksgiving: Father will have even years and Mother will have odd years. Thanksgiving break begins Wednesday at 12PM through Sunday at 12PM.

Christmas/Winter Break: Mother will have even years and Father will have odd years. Christmas break begins from the last day of school until December 28 at 12PM.New Year's Eve: Father will have even years and Mother will have odd years. NYE break begins from December 28 at 12PM until January 2 at 12PM.Spring Break: Mother will have even years and Father will have odd years. The parenting time commences from Saturday at 12PM until the following Saturday at 12PM.Child's birthday: Mother will have even years and Father will have odd years. In the odd years, if child's birthday falls after the school year has ended, Father's summer parenting time will begin from the child's birthday until August 1 at 12PM.Summer Parenting time: Father will have summer parenting time from Father's Day at 12PM until August 1 at 12PM each year, unless the child has school. If the child has school after Father's Day, Father's parenting time will commence from the last day of school until August 1 at 12PM.

ORDERED: After August 1, 2020, Father will travel to Maryland to pick up the child for his parenting time. Mother will travel to New York to retrieve the child at the end of the Father's parenting time.

ORDERED: Any additional parenting time and modifications to this agreement may be made in writing ONLY upon mutual consent with written acknowledgement of that consent. If there is no mutual agreement to modify, the parties shall follow the order as written.

ORDERED: New York State does not retain exclusive continuing jurisdiction.

Dated: January 22, 2020

ENTER:

_____________________________________

Hon. Aija M. Tingling Footnotes

Footnote 1:Although parties both filed petitions, as mother filed first, she is referred to as Petitioner, and father is referred to as Respondent.

Footnote 2:In 2012, Petitioner recounted three incidents: (1) Respondent choked Petitioner until she passed out; (2) Respondent put Petitioner in a wrestling move chokehold and (3) Respondent gave Petitioner a black eye. Petitioner only called the police on one occasion and Respondent was never arrested from any of these allegations. In 2013, after the subject child was born and Petitioner was discharged from hospital, Respondent punched her in the stomach. Petitioner went to the child's pediatrician and asked them to call the police, where Respondent was not arrested but a report was taken.

Footnote 3:Photographs of the injuries sustained were entered as Petitioner's 9, 10 and 11.

Footnote 4:On June 5, 2019 Petitioner was held in contempt of court for failure to abide by the court orders and a negative inference was taken against her.

Footnote 5:The redacted forensic report was submitted into evidence as Petitioner's #1.

Footnote 6:The family offense petitions filed by PGM were submitted as Petitioner's 4 - 8.

Footnote 7:Edwards v. Rothschild, 60 AD3d 675, 677, 875 N.Y.S.2d 155, 158 (2009).

Footnote 8:See Goldsmith v. Goldsmith, 50 AD3d 1190, 859 N.Y.S.2d 749 (3rd Dept. 2008).

Footnote 9:Jared CC v. Marcie DD, 138 AD3d 1168, 32 N.Y.S.3d 330 (3rd Dept. 2016).

Footnote 10:Simpson v. Simrell, 296 AD2d 621, 745 N.Y.S.2d 123 (3rd Dept. 2002).

Footnote 11:Chilbert v. Soler, 77 AD3d 1405, 907 N.Y.S.2d 757 (4th Dept. 2010).

Footnote 12: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." See 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).