Matter of L.D. v K.R.

[*1] Matter of L.D. v K.R. 2020 NY Slip Op 50811(U) Decided on June 29, 2020 Family Court, Bronx County Chesler, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 29, 2020
Family Court, Bronx County

In the Matter of, L.D., Petitioner,

K.R., Respondent.

129906



Attorney for mother K.R.

Pierre M. Janvier, Esq.

778 Morris Park Avenue, Suite 100

Bronx, NY 10462

Attorney for father L.D.

Michael F. Dailey

One Riverdale Avenue, Mailbox ElevenBronx, NY 10463

Attorney for the child

The Children's Law Center by Deborah Gould, Esq.820 Concourse Village West, 5th floorBronx, NY 10451
Hon. Ariel D. Chesler, J.

Decision and Order After Trial NOTICE:

YOUR WILLFUL FAILURE TO OBEY THIS ORDER MAY, AFTER A COURT HEARING, RESULT IN YOUR COMMITMENT TO JAIL, FOR A TERM NOT TO EXCEED SIX MONTHS, FOR CONTEMPT OF COURT.

PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL MUST BE TAKEN WITHIN THIRTY DAYS OF RECEIPT OF THE ORDER BY THE APPELLANT IN COURT, THIRTY-FIVE DAYS FROM THE MAILING OF THE ORDER TO THE APPELLANT BY THE CLERK OF THE COURT, OR THIRTY DAYS AFTER SERVICE BY A PARTY OR LAW GUARDIAN UPON THE APPELLANT, WHICHEVER IS EARLIEST.

ARIEL D. CHESLER, J.:

In this proceeding, petitioner-father, and respondent-mother each seek custody of their son. For the reasons outlined herein, the court finds that it is in the child's best interests to grant the father sole legal and physical custody and grant the mother a final order of visitation.

I.Procedural History

In his July 5, 2016 petition for custody, the father stated that the mother had left New York to Saint Croix in 2014 and since that time, the father has had physical custody of the child and takes care of all of the child's educational, medical and other needs. He added that the mother had last been in New York in the Summer of 2015.

In her August 23, 2016 petition for custody, the mother alleged that the father took the child for a dentist appointment on June 28, 2016 and never returned him. She also stated that the child would have a better life with her in Saint Croix, that she is the more responsible adult, and that she had been the one providing her son with health insurance, housing and financial support.

The Court issued various temporary orders of visitation throughout the pendency of this litigation. In 2017, the mother was granted, inter alia, alternate week visitation in Summer 2017, including time in Saint Croix. The Court also ordered that the child visit the mother in Saint Croix in the Summer of 2018. In Summer 2019, the parents alternated weeks with the child, who remained in New York. The mother was also granted visitation during September 2019, the 2019 Christmas Break, and during February 2020. The parties were directed to have alternate weeks with the child in the Summer of 2020.

A trial was held on four dates between July 2019 and February 2020, at which both parties testified. In addition, the maternal grandmother also testified. The Court took judicial notice of all relevant petitions filed and orders issued in Bronx Family Court. In evidence were the mother's apartment lease, photographs of her residence in Saint Croix, her proof of employment with the Department of Education of the Virgin Islands, the child's school records and a guardianship petition filed by the maternal grandmother.

Separately, an in camera was held with the subject child who appeared with his attorney. The child was clear in his desires and appeared to be freely putting forth his position to the Court.

II. Trial Testimony and Evidence

A. Father's testimony

The court generally finds the father credible. His testimony was consistent and forthcoming. He also provided meaningful explanations of his decisions. The only exception was regarding the child's grades and school performance where the father attempted to avoid the [*2]issues of the child's lateness and performance and was, therefore, less credible.

The father testified that he and the mother were in a relationship when she was pregnant with their son and that they planned for him and to raise him together. Between the time the child was born in 2009 and 2014, the child spent more of his time with the mother and her side of the family, including the maternal grandmother. However, the father was able to come visit "any time" as he had a good relationship with the maternal grandmother.

From 2009 to 2012, the father saw his son at least 5 times per week. They would go to the park, museums, and Chucky Cheese. Sometimes, his son would stay with him overnight; during that time the father was living with his mother in Brooklyn. The child would stay overnight approximately 10 times per month. When he stayed overnight the father would change his diapers, get him dressed, and bathe him. Although the father did not pay formal child support, he would purchase things for the child as needed. He celebrated his son's birthday and Christmas. He also took his son to some of his medical appointments.

From 2012 until 2014, the father continued to see his son often. He would also visit his son every weekday after school and would sometimes take him home after school. During this time period, the child continued to spend overnights with the father. The father stated that the child spent almost every weekend with him. During this time, the father continued tending to the child's daily needs, and continued to take him to medical appointments. The father admitted that he was not involved with choosing a school for his son.

In September 2014, however, the mother left and went to Saint Croix. He recalled her leaving because just two weeks before she left, they took their son to his first day of school together. According to the father, after the mother left until the Summer of 2016, the child primarily lived with him in Harlem. The father would take the child to his school in the Bronx. The child also saw the maternal grandmother often. Specifically, he saw the grandmother on weekends.

When they lived in Harlem, the child had his own bed and that is where the child slept on most nights. During this time, the father took care of his son's daily needs, and took him to most medical appointments. The mother never provided him with any financial support.

In the summer of 2016, the father learned from a friend that the mother was planning to take their son out of the country. Although he initially thought his son was going to visit the mother in Saint Croix, he learned that there was a plan, instead to permanently move the child to Saint Croix.

Specifically, the mother and maternal grandmother never told the father when the child was supposed to leave and return from Saint Croix. The father had been asking since March 2016 about the plans and nobody told him. In June 2016, the mother told him that she had no intention of "leaving New York and not coming back for her son." In other words, the mother intended to relocate the child to Saint Croix. However, she never discussed it with the father.

In August 2016, he filed a family offense petition after an incident occurred; on August 24, 2016, at 1 AM at his sister's home, the mother - accompanied by her brother and best friend - arrived and attempted a "home invasion" to take the child from the home. The police were called when the father's sister was attacked and neighbors saw the mother's faction trying to enter the home.

The "home invasion" occurred the night before the parties were scheduled to return to court on the custody petition. The father heard the mother at the door asking for the child. When the father approached the front door of the apartment, he saw the mother and her party attacking [*3]his sister in the doorway. They were punching his sister in her face and head. The father then brandished a knife to get them to leave, the police arrived, and took the mother into custody. During this incident, the child was sleeping in the back of the apartment.

The father previously filed a family offense petition against the mother in 2011 after the mother became irate and grabbed the child's stroller when they were exchanging the child. In another incident in 2011, the mother punched him in the face.

Since 2016, the child has lived with the father. The father is responsible for the child's daily needs, including clothes, food, taking him to school and medical appointments. The mother does not provide any financial support. The father is currently working as an independent contractor for Postmates and Doordash, which gives him a flexible schedule for his son. He works Monday through Friday between 9 AM and 2 PM delivering items.

The father recognized that the child's attendance at school "could be better." The child attends school in Harlem and he was traveling from Brooklyn — where they lived — everyday. The paternal grandmother would sometimes drive the child to school; the father's sister would also help transport the child, but she passed away in June 2019. Regarding the child's grades, the father stated that on a scale from 1 to 4 the child received 2s, 3s and 4s in his classes. The child also has many friends at school.

According to the father, the child's relationship with the mother is strained. The father never receives gifts from the mother for the child.

The father did not believe that living in Saint Croix was a good option for his son. Among other things, he worried about how the mother speaks to the child and disparages the father. He also worried about hurricanes in Saint Croix. He noted that the child is settled in New York and that this is where his family and friends are, while Saint Croix is a "foreign land" to him. Although the mother has family in Saint Croix, she also has a lot of family in New York including the maternal grandmother.

The father is seeking custody because he thinks staying in New York is the most stable option for his son. The father would comply with whatever parenting time the court orders for the mother so long as it's clear. He would also encourage the child's relationship with the mother.

On cross-examination, the father admitted he was incarcerated in 1996 for 2 and ½ years after being convicted of attempted robbery. That was the only time he was incarcerated.

He reiterated that between 2009 and 2014 he saw his son frequently. Regarding his residence in Brooklyn during those years, he explained that he lived on the second floor of a Brownstone in a 3-bedroom unit with his mother and brother and would commute to the Bronx to visit his son. There was no set visitation schedule during this time; it was an "open-door policy." During this time, he did various activities with the child, and sometimes included other family members such as the paternal grandmother.

Between 2009 and 2011, the father's work schedule was flexible; sometimes he began at 6 AM but it varied. In 2012, his schedule changed; he had a job which required him to work from 2:30 PM until 11:30 PM. During that time, he would visit his son every day before he started work; his son also stayed with him on every weekend.

When the child began living with the father in 2014, the child was still attending school in the Bronx. At that time, the father was living in Harlem with his sister and nephew. The father shared a bedroom with his son. His nephew had his own bedroom and his sister slept in the living room. The father would take the child to school, which was 15 minutes away. During that [*4]time, the child also saw his maternal grandmother after school. The parties did not have any formal or informal visitation agreement at that time.

Although the mother was primarily not in New York between September 2014 and July 2016, she stayed in New York between April and August of 2015. During that time, she saw the child on alternate weeks.

The father reiterated that the mother and her family did not give him information about the planned 2016 trip to Saint Croix. He also maintained that the mother never told him her intent to move with the child to Saint Croix. When he learned about the plan in 2016, he told her that under no circumstances would he ever agree to the child going to live in Saint Croix as he "didn't have any intentions on being that type of father." The father noted that the child had visited Saint Croix twice and had stayed for the Summer previously.

Regarding the 2016 "home invasion" incident, the father stated that he never filed criminal charges because "it was impossible." He planned to raise the issue in Family Court, but the case was dismissed when the mother did not appear and when he arrived late.

Shortly after the 2016 "attack," he moved from Harlem to Brooklyn and remained living there until a month before the time of his testimony. At that time, the child continued to attend school in Harlem. The child has attended the same school since the second grade; the father did not have the child transfer to school in Brooklyn because he was attending a gifted and talented program in a good school. The father noted that the school in Brooklyn they were zoned for may not be a good environment or academically challenging.

The commute from Brooklyn to the Harlem school can range from 1 hour and a half to two and a half hours each way. The father had no problem with this lengthy commute. The father explained that issues with the child's lateness were due to the commute from Brooklyn and that the elderly paternal grandmother was transporting the child. Alluding to the "home invasion," he added that "had I been able to stay in Manhattan, things would have been different."

The father agreed that it might make sense for his mother to take the child to a closer school in Brooklyn, but reiterated his concerns about the quality of the local schools. While there are gifted and talented programs in Brooklyn, they don't exist in every school. The father confirmed that the schools near where he resided in Bedford-Stuyvesant did not have such programs even though those schools near him in Brooklyn were within walking distance.

The father could not recall what the child's attendance record was in the second, third and fourth grades. Nor could he approximate how many absences or late days his son had. The father did receive a report card at the end of the fourth grade year. Although the report card includes information about absences, the father could not state how many absences his son had. The father could not say whether 29 days of absences was correct. Nor could he say whether 75 days of absences was correct. The father did not share the report card with the mother.

While the child was in the fourth grade, the father only took the child to school 10 percent of the time; his mother took the child most of the time. When the child was in the third grade, it was the same arrangement.

Regarding the child's grades, the father stated that the child received either a 2 or 3 in mathematics for the fourth grade. He was not sure what grade the child received in social studies or English. The father explained that he was not focused on the child's grades because he just buried his sister who passed away in June 2019. He was extremely close to his sister.

The father did not know the child's grade point average. The child did take the state tests in fourth grade but the father did not know the results. The father also maintained that he never [*5]got the results from the third grade tests.

The child is supposed to continue attending the same school in Harlem for the fifth grade. The father has changed his job schedule and would be responsible for bringing his son to school. The father's schedule is now flexible. In addition, he and the child would now be residing in Manhattan and the commute would not be as long as it had been. The father would not disclose his address which was confidential because he didn't feel safe after "people coming to my sister's residence and attacking my sister." He never thought "someone would come to my sister's house at 1:00 in the morning and attack her on the same day that you are going to court to see your son. That's just not rational behavior or thinking to me."

The father was able to state that he had a month-to-month sub-lease for an apartment in an apartment building. He pays $800 per month for a 2-bedroom apartment and his income is $500 per week. The child is also covered by health insurance. Only the father and his son reside in this apartment. The father believed he would be able to take his son to school on time going forward. The father's work schedule also allowed him to take the child to school and pick him up. His work ended by 1:30 PM and the child's school ends at 2:20 PM.

The father has a girlfriend — Zanisha Rivera — whom he has been dating for 2 years. She has never lived with him. Sometimes she helps to pick up the child from school; in the past 2 years she has done that about 15 times. She sees his son maybe two times per week. The father denied that his girlfriend holds herself out as his son's parental figure. The father's girlfriend was present at the last trial date and brought his son with her. The father did not know whether his girlfriend ever answered his son's phone.

The child knows that the father is "together" with his girlfriend. He has never seen any issues between his girlfriend and son. His girlfriend does not attempt to discipline his son or raise her voice to him.

The father voluntarily sent his son to visit the maternal grandmother on weekends and holidays between October 2018 and February 2019. The father thought these visits were good because the child enjoyed time with his cousin and grandmother. In February 2019, the visits stopped because the father observed a change in his son's behavior. Specifically, his son became rebellious and was not listening to him. Relatedly, the child is on a wait list for therapy.

On the father's side of the family, the child has a number of cousins, including cousins that are around his age who the child sees on a regular basis. The child also has a lot of friends, including at his school. The father explained his school friends were another reason for the child to stay at the same school. While the father had to go to school in 2017 to deal with his son being bullied, the bullying stopped and his son and the other boy are now friends.

The father stated that he now has no communication with the mother. It has not always been that way; it changed after the "home invasion" incident. In the past, he and the mother would agree to disagree on issues regarding their son. After he discovered the plan to move his son without his knowledge their communication changed. Since that incident he has spoken to the mother twice, including after his sister passed away. Before the mother moved to Saint Croix, the father and her were friends; sometimes they would take their son out to activities such as the zoo or circus together.

Regarding the idea of a move to Saint Croix, he told the mother "we planned [for our son] and I waited to have my son until I was thirty. I didn't have no plans or intentions of him ever being in another place . . . never Saint Croix." The mother replied "I have no intentions in leaving my son in New York."

To ensure his son did not leave New York, the father commenced court proceedings and had his son live with him. At around the same time, he was served with a guardianship petition by the maternal grandmother.

The father takes the child to the doctor and the dentist and the child has no special needs.

Regarding the alternate week summer schedule, the father thought it went well; the child had fun and saw his cousins so "it was a success for him." At times, the child did not want to return to stay with his mother in the summer but the father told him he had to return. Between the Summer of 2018 and the Summer of 2019, the contact between the mother and the child was limited to the phone. The father "felt like" the phone calls were inappropriate. In them, the mother disparaged the child by saying "your father took you from me," "your father's a bum . . . a convict," and told their son she's "not coming back to filthy New York for him or anyone." These conversations forced the father to speak to his son about his incarceration at an inappropriate time and place.

Further, the mother's tone during these phone calls was "aggressive [and] belittling, the way that a person should not speak to a child, to be honest." The father observed that the child would be frantic, tense up and start to cry during the calls with his mother. In a period of a year, there were around 15 or 20 inappropriate calls like this. The mother would also tell the child that his feelings were not his feelings but rather feelings imposed on the child by his father.

B. Mother's testimony

The court finds the mother's testimony to be credible in some regards but finds that she presented as agitated, impatient, disrespectful to the court process, the court and counsel, and exasperated that she was not just immediately granted the relief she was demanding. In addition, the mother repeatedly added verbiage to her testimony that was not responsive to the questions posed, and muttered things under her breath in frustration. She also became emotional at times and cried.

The mother's oppositional, combative, and "win at all costs" stance even caused her to change her answers midway through her response in a transparent attempt to improve the facts so they would support her position. For example, while initially conceding that the maternal grandmother was the child's primary caretaker during the period the mother was in Saint Croix, the mother changed her answer to claim that somehow she was the primary caretaker from many miles away. She also contradicted herself at times. For example, immediately after testifying that she does not communicate with the father via text message, the mother conceded that she communicated with him via text message in January 2020. Further, while admitting she planned to take the child to Saint Croix as early as 2014, she denied she planned to take him there in 2016 when she attempted to take the child from the father's apartment in the middle of the night. Later in her testimony she contradicted herself again when she admitted she planned to either proceed in court or just take the child to Saint Croix.

In sum, the Court cannot give much weight to her testimony as she consistently demonstrated no regard for the legal system, the father's rights, the subject child's wishes, or what might be in the best interests of her son, and her stance made it difficult to credit her testimony.

The mother testified that she has known the father for around 16 years and, at the time of trial, she had lived in Saint Croix in the U.S. Virgin Islands for around 4 or 5 years. According to the mother, the parties lived together on and off at her mother's residence between 2005 and 2012. She described the current state of the parties' relationship as "non-existent," and added that [*6]they do not speak at all.

Regarding her home in Saint Croix, the mother described it as a lovely place and noted that she lives in a 2-bedroom apartment in a gated community which has a playground area and fitness center and other amenities. Since 2015, the mother has been employed by the Department of Education of the Virgin Islands. She earns approximately $31,000 annually and receives health insurance coverage.

From the child's birth in 2009 until 2014, the mother was his primary caretaker and she lived with him in the maternal grandmother's home. From 2014 - when the mother initially went to Saint Croix - through 2016, the child lived with the maternal grandmother. More specifically, the mother spent seven months in Saint Croix in 2014 and early 2015. She then moved there permanently when she was hired as a paraprofessional in September 2015.

The mother claimed that while she was in Saint Croix, the father saw the child on weekends and visited him at the maternal grandmother's home. She recalled a casual conversation with the father that took place in 2015 about her being in Saint Croix. Then, in September 2015, she recalled the father expressing concerns about the child not going to Saint Croix. The mother told the father he was not "stable enough" for the child to live with him. She took that position because at that time the father was unstable, did not have his own residence and lived in public housing with his sister. In particular, she believed the father only had a corner of his own in the "2-bedroom project apartment" where he lived with around four other people. She also received no financial support from the father at that time except for "small change."

The mother claimed that she selected the child's school when he began kindergarten; she enrolled him in P.S. 35 where the maternal grandmother worked. She added that the father played no role in this and was not responsible enough to get the child to school on time. The maternal grandmother attended parent-teacher conferences, and the mother had no personal knowledge of the father attending such conferences.

The mother's long-term educational goals for the child were that he complete school in the Virgin Islands and attend college for free at a historically Black university. She had no knowledge of her son's current educational performance. She has not had an opportunity to see how her son had progressed over time. She found the child's repeated late arrival at school to be "disgusting and unnecessary." She never spoke to the father about educational plans for their son.

Regarding her son's medical care, the mother stated she had had no information about it. She did not know his current pediatrician or whether he was up to date on immunizations. She made no effort to obtain any of this medical information.

From age 3 to 6, the father visited the child at the maternal grandmother's home on an "open-door policy" and there was no set schedule. When the father was not living with them, he would visit between 4 and 6 times a month.

In June 2016, there was a plan for the child to move to Saint Croix and live with her. According to the mother, the father picked the child up on June 28, 2016 and never brought him back to the maternal grandmother's residence. The mother insisted that she had many discussions with the father about the planned move between 2014 and 2016.

The mother denied disclosing to her son in recent phone conversations that the father had a criminal record. She also denied speaking negatively about the father on her phone calls with her son. She did admit that she told her son that she didn't like New York City; she did not hear the child sound upset at that.

The mother expressed many concerns about the child, including a lack of information about his residence, his school, and his medical care. She claimed she hadn't had reasonable access to her son. She also was concerned about the conditions of the father's home, the child's hygiene practices, his influences, and his social interactions.

When the child stays with her, she has observed that he doesn't wash himself properly in the shower or brush his teeth properly. She is also concerned that the child eats unhealthy food.

Regarding the father's girlfriend, the mother explained that she knew her from having exchanged the child with her and conversing on the phone. The phone conversations were cordial through 2017 until 2018 when the conversations turned negative. The mother stated that when the parties were in Court on September 4, 2019 there was an incident in the courthouse bathroom during which the mother and the father's girlfriend exchanged words in the bathroom, and the father's girlfriend was escorted out by a court officer.

The mother explained that she moved to Saint Croix because there were no opportunities for her in New York. She also noted the high rent in New York and that she doesn't like being "congested." She believed Saint Croix is a better environment which provides her son with safety. She described Saint Croix as "lush, green, beautiful, tropical, fresh air, clean streets" and New York as "dirty streets, inner city, project, no place I want to be."

In Saint Croix, the child would go to the school where the mother is employed. The mother has support in Saint Croix, around 10 or 20 family members including aunts and cousins. If she were granted custody, she would offer the father visitation in the Summers and whatever other vacations he could afford. She never discussed moving with her child before she moved.

On cross-examination, the mother stated that since she moved to Saint Croix in 2015, she had returned to New York between 8 and 10 times. She has never gone to her son's school, called the school or spoken to his teachers. She has never met any of her son's doctors or spoken to them on the phone. She never asked for his school records. Nor has she ever communicated with the father about the child's school or medical providers.

Although the mother stated that the child engages in no extracurricular activities, she never spoke to the father about enrolling the child in activities. Nor did she speak to the father about her concerns with the child's dental hygiene, general hygiene or progress in school.

The father visited the child often when the mother was initially in Saint Croix, and the mother spoke to her son almost every day. Once the child went to live with his father she didn't speak to the child for months. Specifically, she didn't speak to the child between June 28, 2016 and November 2016.

The mother admitted that she has not paid any child support to the father and had not offered to make any payments. She does provide her son with clothes at the maternal grandmother's home but never provided any of those clothes to the father. She elaborated that her son needs proper attire to wear and that he is not sent with clothes when he visits. In other words, she only allows her son to wear the clothes she purchased for him at the maternal grandmother's home. She never communicated with the father about bringing clothes on the visits, as she's "not going to communicate with a grown man."

Regarding communication between the parties, the mother stated that she does not communicate with the father via text. However, immediately after stating that, she admitted that she had communicated with the father via text on January 9, 2020. In that text message, she asked the father "where's my child? It's been two weeks and I haven't spoken to him." She also told him "you are a truly disgusting man," "whatever man you thought you are, you are far from [*7]it," "my family is way better than anything you or your family can bring" and stated: "To think you have more rights to my child, than me, I work too damn hard for mines, and you think I must live without my child?" She also wrote "Just give me my damn child," "shame on your filthy disgusting ass," and "I will have my child."

The mother also admitted that since she had moved to Saint Croix, she had sent various other text messages to the father when she's angry and frustrated. She did not know how many times she sent the father such messages.

Regarding her plan to move the child to Saint Croix in 2016, the mother stated that she had last had a meaningful conversation with the father about that in August 2015. There were other more casual conversations. During the August 2015 conversation, she told the father that she would be taking their son to Saint Croix. Although the mother maintained that at that time the father did not have "much of an objection," she also noted that he said "I don't want my son to be that far from me." While recognizing the father's position, she discounted it, noting "he could not have wanted to keep [their son] in New York. You have no place to keep him."

The mother further explained that she and the father don't "have discussions like average people . . . [only] quick, casual conversation . . . I've never been able to have a decent discussion with this person, because he avoids everything, when it comes to responsibility." She added that when she speaks to the father she "makes demands . . . and I tell you what's going on because you do not step up. And nobody can sit around and wait for you to make a move." She also remarked that when she raised the move again in the summer of 2016, the father had no reaction.

The mother denied trying to take the child from the father's home by posing as ACS workers. However, she admitted going to the father's home with her brother and a friend and attempting to take her son in 2016. She also admitted that the police had to remove her from the home. She denied she planned to take the child to Saint Croix at that time. She also denied that she or anyone in her party attacked the father or his sister. She instead claimed that the father's sister attacked her.

Although the mother could not see or hear the child at the time of the altercation, she knew he was inside the home. The altercation took place in the hallway outside the home and everyone — around 6 adults — was shouting. She had demanded that the father bring her the child so she could bring him to the maternal grandmother's home and take him "from the one place she didn't want him to reside." She then intended to either petition for custody or take the child to Saint Croix so that the father didn't "take my son from my care again."

The mother stated that she didn't want her son to live in the "projects. A[n] illegal apartment that's dirty. That stinks " She denied that she didn't want the child to stay "anyplace where the father lives." The mother believed that the father's home continued to be inappropriate because "you know a person." And, while the mother had no personal knowledge that the father lived in a filthy environment, she "know[s] what the projects look like" and she "don't want her son raised up there."

Although she denied telling her son that his home is dirty and inappropriate to live in, she did admit telling him that the people living in his home are not appropriate for him to be living with. She told her son that Saint Croix would be a better place for him to live and that the Bronx is filthy and dirty and that New York City is filthy. She did not tell the child that she was frustrated that the father would not let him move to Saint Croix.

The mother has discussed her concerns about hygiene with the child. She has bought him deodorant, told him to brush his teeth again, and taught him to wash under his arms. She denied [*8]that the frustrated tone she used while testifying is how she speaks to her son about these issues. During Christmas vacation 2019, the mother was able to observe over FaceTime that the child had not brushed his teeth. She did not have any concerns about hygiene when the child was living with her mother.

Regarding the child's education, the mother was aware that college is also free in New York. She would move back to New York if it meant spending more time with her son. She also acknowledged that she could get the same job she currently holds in New York. She also admitted she had many family members in New York, including her mother. She insisted that her cousins and aunts in New York don't want to provide childcare even though she never asked them.

If she obtained custody, she would not pay for the father to visit or provide him a place to stay in Saint Croix. She would pay for the child to travel to New York but not to see his father. But, she never discouraged the child's relationship with his father.

On the other hand, the mother had no plan if the Court awarded the father custody and didn't think about that scenario at all. She did not want to return to live with her mother and doesn't want to look for an apartment in New York. Nor has she looked for a job in New York. She does not work in the summer.

She speaks to the child whenever he is at the maternal grandmother's home. Other times she calls repeatedly and may not hear back from her son for weeks. Yet, she doesn't call her son on his phone. When she speaks to her son when he is at her mother's home their communication is "fine" and "normal." As examples of this "normal" conversation, the mother stated that she asks her son "what's been going on, how come I haven't spoke to you . . . Like how do you go two weeks without speaking or calling . . . I've sent text messages. I call. And there's no response . . . Come on. You don't return a call. You don't answer a text. Nobody knows your whereabouts." When she speaks to her son when he's at the father's home the communication is different - more abrupt and a dry conversation. At the time of her testimony in February 2020, she stated she last physically saw her son in September 2019; in December 2019 she only saw him via FaceTime even though she was granted visitation.

She never contacted her son's school or teachers because she was embarrassed and feared being denied access to information. She only "has an idea" what school he attends. The last time she recalls details about his education was when he was in first grade. She cannot state whether he is doing well in school currently and she only learned about her son's excessive lateness in Court.

In Saint Croix, the school the child would attend is 10 minutes from the mother's home. There is also an afterschool program. The child's diet would also improve as the mother grows most of her vegetables and eats fresh foods all the time.

C. Maternal Grandmother's Testimony

As an initial matter, the Court finds that, overall, the grandmother testified credibly. Her answers were generally honest and forthcoming. In some areas, such as her purported lack of awareness of the plan to move the child to Saint Croix in 2016 and whether she had observed the mother criticizing the child, the court finds that the grandmother ("G.R.") was incredible.

G.R. testified that she is the mother's mother and the grandmother of the subject child. She has known the father for about 15 years and he previously lived in her home. The father lived with her for about 5 months after the child was born. He was generally a good tenant/guest [*9]in her home and she had a good relationship with him until 2016.

On July 5, 2016, the grandmother filed a guardianship petition for the child. She did so in order to take care of the child's medical needs and other needs since he was living with her until that time. In fact, she had enrolled the child in the school where she works. In 2014 and 2015, the mother was also living with her. However, she did travel to Saint Croix for weeks or month at a time. While the mother was away, the grandmother took care of the child's daily needs.

During the time the mother was away, the father would take the child for about a week each month. Occasionally the father would take the child to school. In 2014 and 2015, the grandmother was doing 100% of the day to day caretaking. During that time the father never expressed a desire for the child to live with him.

When the mother moved to Saint Croix she wanted to take the child with her but she let him stay in New York because he was too young. The grandmother did not know about any conversations between the parties about the child moving.

Since the child has lived with the father, the grandmother's visitation has varied. In 2017, she saw the child about two weekends per month. In 2018, she saw the child once every two months. In 2019, she saw him two weekends a month.

The grandmother observed that the child has changed since living with the father. She said the child used to be a happy, cheerful person and is no longer that way. She added that he cheers up after being with her for a while and then his demeanor changes when he has to return to his father.

The grandmother also noted that the child's hygiene is not pleasant at times and that he has an odor emanating from his clothes and armpits. She has never discussed this with the father. She claimed that this was because the father won't respond to her when she calls him. Regarding his dental care, the grandmother observed that he always has food in his teeth, his clothes are not in good condition and he is never sent with clothes when he visits.

The grandmother stated that the litigation had impacted the mother a lot because she has no communication with her son. Before the litigation, the mother was "not that depressed."

The grandmother also relayed that the mother taught the child to read and write and assisted him with school in the past because she wants him to go to college in the future.

On cross-examination, the grandmother clarified that the mother was the child's primary caretaker until she left for Saint Croix at which point the grandmother became the primary caretaker.

When the grandmother filed her guardianship petition in 2016, she in part wanted the child to live with her and not the father. She also thought the child was too young to move to Saint Croix and should stay in the Bronx with her until the end of fifth grade. However, after the mother obtained employment in Saint Croix the mother wanted to take the child to live with her there; the grandmother told her not to move him there. The grandmother thought the child should stay in New York and get to know his father.

In her guardianship petition, the grandmother stated that she purchased plane tickets to take the child to his mother in Saint Croix. The grandmother admitted these were one-way tickets for herself and her two grandchildren. But, she denied that this was because there was a plan for the child to stay with his mother. The grandmother told the father about this trip but didn't tell him she had no return ticket.

Before she bought the plane ticket the grandmother never spoke to the father about the child living with his mother in Saint Croix. She was unaware about any conversations between [*10]the parents on the child moving and she was not aware that the father did not want the child to move to Saint Croix. The grandmother was unaware that the father took the child to live with him in June 2016 because he was afraid the child was being taken to Saint Croix permanently.

The grandmother observed that prior to 2016 when the father visited and took the child out the child acted like a normal kid. She could not say whether it was important to maintain a relationship between the father and son now.

The grandmother has seen the parties argue often. The grandmother described the mother as "hard to deter." She added "When she make up her mind, she's right. You can't change it." She said that the mother gets along with other people if "her spirit connect with a person." Although the parties used to connect, after the child's birth it went "downhill." However, she believed the mother could cooperate with the father in order to raise the child. Despite it being hard to deter the mother once her mind is set, the grandmother believed the mother would listen to the father and consider what he says regarding the child.

Currently, the grandmother's older daughter and her grandson live with her. The subject child gets along well with his aunt and cousin. The grandmother also has a good relationship with the child. The grandmother believes the mother is stable now because she has a job and home. The grandmother doesn't know anything about where the father works or lives.

The grandmother also opined that the mother and child don't have the relationship they should. In part, this was because the mother was unable to communicate with the child often. At the same time, the grandmother acknowledged that the child had his own phone and the mother could contact him directly. The grandmother denies that the mother is critical of the child; the mother just "thinks [the child] should be better than he is." The grandmother has not observed the mother criticizing the child's hygiene or appearance. However, she has seen the child get upset when interacting with his mother when she tells him to brush his teeth and about his odor. When the mother discussed these things with the child she sounds like a "concerned mother."

Although the grandmother sees the child two weekends each month and saw him for Christmas break in 2019 she wants to see him more often. She has not been able to speak to the father about this much. When they did speak, the father said the child could visit her more often but the visits have not changed. The grandmother never came to court to ask for visitation. The father in fact voluntarily arranged her visitation.

The grandmother does not plan to relocate to Saint Croix and would be sad if the child moved. If he did move, she would speak to him via phone and video chat. She thought she would have more connection with the child if he were in Saint Croix. She also thought the child was older and could move to Saint Croix now.

II.Discussion and Decision

A. Custody

The mother's written summation argues she should be granted sole custody of the child and be permitted to relocate with the child to Saint Croix. In contrast, the father's written summation argues he should have sole custody and that the child should remain in New York with him. Neither of the parents' summations account for visitation of the child with the other parent. The AFC's written summation argues that the father should be granted sole legal and physical custody of the child and that the mother should be granted parenting time during summer vacations and extended school holidays.

No parent has a prima facie right to custody over another parent and custody awards must be based only on the child's best interests and in promotion of the child's health and [*11]happiness. (Domestic Relations Law §70[a]). No one factor is determinative of custody; rather, the Court is required to consider the totality of the circumstances. Among the factors to be considered is the respective age of the child, the financial circumstances, the home environment of each parent, the parental fitness of each parent, the preference of the child, the emotional bond between the child and each party, the ability and willingness of each party to facilitate a relationship between the child and the other party, and any goal of keeping siblings together (See Eschbach v. Eschbach, 56 NY2d 167, 172 [1982]). When applicable, the Court must also consider the length of time of any prior custodial arrangement and ensure stability for the children. (See Friederwitzer v. Friederwitzer, 55 NY2d 89, 94 [1982]).

In any custody proceeding where one of the parties has relocated and seeks to have the child relocate away from the other parent, such as here, relocation is a factor to be considered in determining the best interests of the child (see Tropea v. Tropea, 87 NY2d 727, 739—41 [1996]). However, the factors set forth in Tropea do not strictly apply here given that there was no prior custody order at the time of the mother's relocation to Saint Croix. (see Arthur v. Galletti, 176 AD3d 412, 413 [1st Dept 2019]). Nevertheless, as it is the main basis for the litigant's petitions, the court must consider several of the Tropea factors in making its underlying custody determination.

While the strict application of Tropea factors may not be required, the mother's desire to relocate, and her actual relocation remains a significant factor, one that must be considered among the other factors in making the custody determination. In considering relocation as a factor, this Court must in turn consider the reasons for the move, any potential benefits of relocation to the child, and the effect of the move on the child's relationship with his father, and any other relevant related factors that may aid in its determination.

More specifically, the factors to consider related to relocation include:

1)"the impact of the move on the relationship between the child and the noncustodial parent"; 2) "the custodial parent's reasons for wanting to relocate and the benefits that the child may enjoy or the harm that may ensue if the move is or is not permitted"; 3) "economic necessity or a specific health-related concern"; 4) "the demands of a second marriage and the custodial parent's opportunity to improve his or her economic situation; 5) "the noncustodial parent's interest in securing custody, as well as the feasibility and desirability of a change in custody"; 6) the child's "ties to the noncustodial parent and to the community"; 7) "the good faith of the parents in requesting or opposing the move"; 8) "the child's respective attachments to the custodial and noncustodial parent"; 9) "the possibility of devising a visitation schedule that will enable the noncustodial parent to maintain a meaningful parent-child relationship"; 10) "the quality of the life-style that the child would have if the proposed move were permitted or denied"; 11) "the negative impact, if any, from continued or exacerbated hostility between the custodial and noncustodial parents"; and 12) "the effect that the move may have on any extended family relationships" (see Tropea, 87 NY2d at 739-40).

After considering the totality of the circumstances and the various factors discussed herein, the court does not find that granting the mother custody or permitting the child to relocate with her is in the child's best interest. The mother's stated reasoning for relocating to Saint Croix and wanting to have the child relocate with her included better employment opportunities for her, lower cost of living, better housing where the child would have a larger room and backyard to play in, better educational opportunities for the child, and an overall better quality of life as [*12]opposed to the challenges faced with living in an inner city environment. Her vague and conclusory testimony about the potential benefits achieved by a move to Saint Croix is outweighed by the level of disruption the move would cause to the child's life and are insufficient to justify relocating the child away from the stability he has currently.

While the Court recognizes that the mother's home in Saint Croix may be larger and more comfortable and the environment beneficial, this is only one factor to consider. Notably, the mother did not sufficiently establish that she was forced to move to Saint Croix out of economic necessity. Although she testified there were no opportunities for her in New York and the cost of living was high in New York, she did not demonstrate what type of job or housing search she conducted throughout New York, if any. Nor did she even suggest she searched in less distant locales than Saint Croix such as the Tri-State area. In any event, there was no evidence that she could not obtain a comparable position in New York earning $31,000 annually. There was nothing unique about her position as a paraprofessional and no proof that she could not attain a similar salary in New York. In fact, the mother conceded she could get the same Saint Croix job she currently holds in New York.

The mother also did not sufficiently establish a qualitative difference between the school in Saint Croix and the school the child attends in New York. The mother's testimony made clear only that she had a very negative opinion of New York and a high opinion of Saint Croix, and that she had no desire to live in New York. However, her feelings about New York are not a basis to relocate, and certainly do not outweigh other relevant factors.

In contrast to the record evidence demonstrating the child's close ties to his father, the father's family, and to his maternal grandmother, there is no evidence to support any connection between the child and the extended family he may have in Saint Croix. In other words, the child's most significant familial relationships remain in New York.

The child has a strong relationship with his father. Even when he lived primarily with his mother, his father had regular access and parenting time with the child. A relocation to Saint Croix would severely impact that relationship and limit the amount of quality contact they already enjoy with one another (See Yamilly M.S. v. Ricardo A.S., 137 AD3d 459 [1st Dept 2016]). The child also has a great relationship with his extended relatives, on both his paternal and maternal sides of the family. Courts deny relocation if the relocation would have a significant and potentially adverse impact on the child's strong relationships with one parent (here the father) or with other members of the extended family (See Munson v. Fanning, 84 AD3d 1483, 1485 [3d Dept 2011]).

In this regard, it is significant that the maternal grandmother testified as to her close connection with the child. The maternal grandmother served as the child's primary caretaker in 2014-2015 and continues to see him regularly. She also noted that she would be sad if the child moved to Saint Croix. It is clear to this Court that the child's relationship with the maternal grandmother would be negatively impacted by a move to Saint Croix.

Two areas of concern raised by the mother in favor of a relocation to Saint Croix were the child's school attendance record and his allegedly poor hygiene. The Court agrees that the child's chronic lateness is a serious concern, one that the father must take very seriously. However, the father acknowledged that the child's attendance record needed to improve, especially with regard to his school lateness. The father has indicated his intention to assume responsibility for bringing the child to school rather than rely on other relatives to do so. In addition, the father's new residence has significantly reduced the commute time to school and [*13]should ameliorate the concerning number of late arrivals.

Regarding the child's alleged body odor and poor cleaning habits, these issues are common amongst pre-adolescent boys and can be remedied. It may take patience and constant reminders over time until the situation improves; the mother's expectations of perfection are unrealistic. The child's hygiene is an insufficient basis to transfer custody from one parent in New York to another in Saint Croix.

Another factor the Court considers is how disruptive the relocation and transfer of custody would be on the child's life. Ultimately, the mother was absent from the country for a significant period of time and she appears unable to accept the reality that her absence impacted her role as the primary custodial parent and impacted her son's life. Although the court recognizes the mother was the primary custodial parent until 2015, and that the mother served as a competent primary caretaker in the past, directing the child to live with his mother in Saint Croix after living more than 4 years with his father in New York would be extremely disruptive to the child's life. The child's home, his friends, his extended family and daily life has been with his father for a significant period of time. His father has taken on the role of primary caregiver since 2016, with little assistance from the mother. She testified at trial that she does not provide any support to the Father to assist him with the care of the Child or that the Child is not allowed to leave the maternal grandmother's home with any of the clothing that she buys for him.

The mother's position seems an attempt to ignore the reality of the child's lived experience; time did not freeze when the mother moved to Saint Croix. Instead, for four years the child has known his father as his primary parent and his mother's absence from his day-to-day life. Moreover, the mother admitted that she knew very little about the child's medical needs, educational needs, or other needs, and made no effort to obtain information about them. This factor, along with the child's bond with his father, and the importance of stability, weighs in favor of granting the father custody.

To move the child to a distant locale after 4 years of living with his father based on the underwhelming weight of the mother's testimony would not be in his best interest. In fact, a transfer of custody to the mother in Saint Croix would be far more traumatic for the child than any potential benefits achieved by relocating him. Therefore, the factor of stability weighs against relocating with the Mother to Saint Croix and in favor of granting the father custody.

Any parent who is awarded custody must be willing to facilitate a relationship between the children and the noncustodial parent. (See Matter of James Joseph M. v. Rosana R., 32 AD3d 725, 726 [1st Dept 2006]; Lohmiller v. Lohmiller, 140 AD2d 497, 498 [2d Dept 1988]). In fact, some courts have found that an unwillingness to facilitate that relationship is "an act so inconsistent with the best interests of the children as to, per se, raise a strong probability that the [parent] is unfit to act as a custodial parent." (See Entwistle v. Entwistle, 61 AD2d 380, 384 [2d Dept 1978]. Rather than a per se rule, a custodial parent's interference with the relationship between a child and noncustodial parent "constitutes one fact, albeit an important one, in determining the best interests of the children . . . a failure to adequately consider all the pertinent information may result in a change of custody that, despite the custodial parent's misconduct, is not in the best interests of the children." (Id. at 336 [Saxe, J. concurring]).

The trial testimony revealed significant challenges in the parents' communication with one another and a joint custody relationship would not work between these two parents. If the mother were given legal or physical custody of the child, there is a very low probability, based on her own trial testimony, that she would facilitate any relationship between the child and his [*14]father. The Mother testified that her relationship with the Father is "non-existent." She admitted during trial that it was not atypical for their text communications to one another to include insulting or degrading language. Her overall demeanor during trial suggested a visible disdain for him and it is unlikely that she will be able to facilitate a harmonious partnership with the father.

The mother also demonstrated a complete lack of respect for the father, his opinions, or his role in the child's life. She was frustrated by his discovery and thwarting of her secret plan to relocate the child without the father's knowledge or consent. Similarly, she appeared incredulous that the Court even considered the father's position or that she had to go through the litigation process at all. Her lack of respect for the father as a parent and her abdication of the responsibilities of a competent custodial parent is exemplified best by her attempt in 2016 to physically remove the child from the father's home in the middle of the night. This behavior was irrational, dangerous and violent, and necessitated the mother's removal by police officers.

This Court is of the opinion that the father is better able to facilitate a relationship between the mother and their son going forward and that the mother would not make any of these same efforts. Since June 2016, the father has been the primary caretaker and provider for the child after the mother's unilateral decision to move to Saint Croix. The quality of the father's home environment appears to be positive and nurturing for the child. The child still has close connections with the extended maternal family, evidenced by his continued relationship with his maternal grandmother. Even with the mother's move to Saint Croix, the father has maintained the relationship the child has with his maternal grandmother and other maternal relatives.

The mother argues that the father has engaged in parental alienation. Indeed, the father expressed distrust of the mother after the 2016 incident in which she attempted to physically remove the child from the father, and may have taken a distant, non-communicative posture with the mother. No doubt this posture limited the father's ability to encourage a relationship with the mother. On the other hand, the father always complied with court orders, and was happy for the child when the child enjoyed time with his mother and maternal grandmother.

However, the mother showed no awareness of how her constant critical and "belittling" tone and disparagement of the father and of New York City harms her son. She couldn't even understand why the child was upset about the passing of his paternal aunt. She also seemed oblivious to how her sudden departure from New York without discussing it with the father or son would impact her relationship with her son. And, she minimized and even negated the child's expressed feelings. Stated differently, she failed to comprehend the impact her words and actions had on the child. To the extent the father limited phone calls or contact with the mother it was an understandable action to protect his son who became visibly upset during calls with the mother. More significant, however, is that the mother's parenting style does not support the child's emotional development, comfort or happiness, and she appears unable to place the child's needs above her own.

Overall, the mother's behavior and decisions, including her decision to move to Saint Croix, with or without her son, demonstrates an inability to give the child's needs priority over her own preferences, which a custodial parent is expected to do.

Further, the child has expressed through his attorney a desire to remain in his father's custody. While not determinative, the expressed wishes of the child are significant, and the Court has given consideration to his age and maturity as well as his demeanor during the in camera proceeding. This Court finds that the child's wishes should be given some consideration [*15]especially since the child was able to verbalize his desires (see Koppenhoefer v. Koppenhoefer, 159 AD2d 113, 116 [2d Dept 1990]).

Taking into account the desires of the child, as indicated by his attorney, that a move to Saint Croix would be a disruption to his life and the high probability that his mother would make little to no efforts to facilitate a continued relationship between the child and his father, as well as the other factors outlined above, this court grants sole legal and physical custody of the child to his father. The mother is entitled to independent and direct access to the child's educational and medical records and to be notified by the father of any significant decisions made for the child. It is expected that the father will keep the mother informed of significant changes in the child's life.

B. Visitation

It is well settled that non-custodial parents have a right to visitation with their children, that such visitation is a joint right of the noncustodial parent and children, and that the noncustodial parent plays a valuable role in guiding and loving their children. (See Weiss v. Weiss, 52 NY2d 170, 175 [1981]). Given the determination that the father shall have sole legal and physical custody, the noncustodial mother, therefore, shall be awarded visitation and parenting time with the child during the child's summer and holiday breaks. Neither the mother's nor the father's summations take any specific position regarding a visitation schedule. The AFC, however, laid out detailed options for a visitation schedule between the child and his mother. The Court will incorporate a number of these options into its final order of visitation in accordance with the directives below.

Due to the ongoing Covid-19 pandemic, there remain some restrictions on travel for both New York and Saint Croix. As a result, there shall be no travel to Saint Croix during the summer of 2020.[FN1]

For the summer of 2020, commencing July 6, 2020, the mother shall have alternate week visitation with the child in New York City. Pickup and drop off shall be at the maternal grandmother's home. Should the mother remain in New York beyond the child's summer vacation, she shall have alternate weekend parenting time from Friday, after school until Sunday at 4:00pm (drop off at the maternal grandmother's home) for the duration of her stay in New York.

Commencing the Summer of 2021, and each summer thereafter, the child shall spend the month of July in Saint Croix with his mother. The mother shall bear the cost for all of the child's flights to and from Saint Croix. Until such a time as both parents agree that the child is old enough to travel alone, the child shall be accompanied on the flight by a member of the maternal family, such as the mother or the maternal grandmother or his father. The parents shall evenly split the cost of the accompanying traveler's flight and lodging expenses. The mother shall provide the father with all details of the child's flight itinerary, in writing, at least two weeks in advance of any travel.

Additionally, the mother shall have parenting time with the child during school holidays and breaks, as laid out below and travel arrangements shall be made in accordance with the preceding paragraph:

• In odd years, the mother may have parenting time with the child in New York during [*16]Thanksgiving Weekend, from the time the child is released from school at the start of his break, until the evening before the child is to resume school, with visitation exchanges to occur at the maternal grandmother's home. If the mother does not visit New York City during the child's Winter/Christmas vacation, the father shall have parenting time with the child.• In even years, the mother may have parenting time with the child in New York during Winter/Christmas Break, from the time the child is released from school at the start of his break, until the evening before the child is to resume school, with visitation exchanges to occur at the maternal grandmother's home. If the mother does not visit New York City during the child's Winter/Christmas vacation, the father shall have parenting time with the child.• In odd years, the mother may have parenting time with the child in New York during Spring/Easter Break, from the time the child is released from school, until the evening before the child is to resume school, with visitation exchanges to occur at the maternal grandmother's home. Additionally, if the mother chooses not to travel to New York during the child's Spring/Easter Break, the child shall have visitation with the mother in Saint Croix, during Easter/Spring Break.• The mother may have visitation with the child in New York on Mother's Day Weekend from the time the child is released from school, until the evening before the child is to resume school, with visitation exchanges to occur at the maternal grandmother's home.

If the mother should permanently return to New York, the final order of custody will remain with the father, but the mother's parenting time with the child shall be as follows:

• The mother shall have alternate weekend visits with the child from the time the child is released from school on Friday, until Sunday at 6 PM, with pick up and drop off to be arranged by the parties.• Every summer, the mother shall have parenting time with the child for the first two weeks of July and the first two weeks of August, with pick up and drop off to be arranged by the parties.• In even years, the mother shall also have parenting time with the child during the February school break, from the time the child is released from school, until the evening before the child is to resume school, with pick up and drop off to be arranged by the parties.• In odd years, the mother shall have parenting time with the child during Spring/Easter Break, from the time the child is released from school, until the evening before the child is to resume school, with pick up and drop off to be arranged by the parties. • In odd years, the mother shall have parenting time with the child during Thanksgiving Weekend, from the time the child is released from school at the start of his break, until the evening before the child is to resume school, with pick up and drop off to be arranged by the parties.• In even years, the mother shall have parenting time with the child during Winter/Christmas Break, from the time the child is released from school at the start of his break, until the evening before the child is to resume school, with pick up and drop off to be arranged by the parties.• The mother shall have visitation with the child every year on Mother's Day Weekend from the time the child is released from school until Monday morning, with pick up and [*17]drop off at the school.

The mother, having independent access to the child's school schedule, must contact the father, by text message or email, at least one month in advance of each of the child's school holidays and vacations, and inform him whether she intends to exercise her visitation with the child in New York, or, when applicable, whether she will instead be arranging for the child to visit Saint Croix.

Finally, this court directs that the parties shall not disparage the other parent, or permit others to do so, in the child's presence.

The parties may also modify this schedule on mutual consent in writing.

Accordingly, it is

1. ORDERED that the father's petition, V-16774-16 is granted; and it is further

2. ORDERED that father is granted a final order of sole legal and physical custody of the child; and it is further

3. ORDERED that neither party is to relocate the child's residence outside of New York City, and that the mother is entitled to independent and direct access to the child's educational and medical records and will be notified in advance by the father of any significant decisions made for the child; and it is further

4. ORDERED that a final order of visitation is awarded to the mother as set forth above; and it is further

5. ORDERED that the mother's petition, V-21343-16 is denied; and it is further

6. ORDERED that the parties may modify the visitation schedule on mutual consent in writing; and it is further

7. ORDERED that the parties shall not disparage the other parent, or permit others to do so, in the child's presence.

This constitutes the decision and order of the court.

Dated: June 29, 2020

Bronx, NY

ENTERED:

___________________________

ARIEL D. CHESLER, J.F.C. Footnotes

Footnote 1:The parents should continue to adhere to any travel restrictions and advisories due to the Coronavirus outbreak or any future travel concerns that may arise.