Matthew A. v Jennifer A.Annotate this Case
Decided on September 18, 2020
Supreme Court, Monroe County
Matthew A., Plaintiff,
Jennifer A., Defendant.
AFFRONTI & AFFRONTI, LLP
Francis C. Affronti, Esq.
For the Plaintiff Matthew A.
Rochester, New York
GALLO & IACOVANGELO, LLP
Seema Ali Rizzo, Esq.
For the Defendant Jennifer A.
Rochester, New York
LAW OFFICE OF DENISE R. MUNSON, ESQ., PLLC
Denise R. Munson, Esq.
For the Children
Walworth, New York
Richard A. Dollinger, J.
This matter involves a novel question, unexplored in New York or elsewhere: can a Court order a parent to impose discipline on children who voluntarily refuse to engage in court-ordered visitation with the other parent? Faced with children who, apparently with one parent's blessing, want to define their own best interests contrary to the visitation plan agreed to by their parents, this Court elects to use its contempt powers to impose disciplinary measures to protect the parental choice of best interests for these children.
1. The Separation Agreement
The underlying facts in this matter are undisputed. The divorced couple entered into a [*2]separation agreement less than two years ago. The agreement created joint legal custody of the children and declared that the three sons—now ages 14, 12 and 10—would primarily reside with their mother. The agreement did not contain any specific weekday visitation time for the father. The agreement noted that because of the distance between the father's home and the mother's residence and the occurrence of the children's activities, "it is difficult if not impossible to identify a specific time when the father will spend time with the children during the week." The agreement further provided that the father had only one dinner visit during the week with his sons, provided he gave the mother one week's notice. The agreement provided that father would have alternate weekend visitation from Friday afternoon to Sunday at 6:30pm. The agreement also required the father to pay $330 per week in child support plus finance a portion of the children's health insurance costs.
The agreement also contained a provision—not unusual in the Court's experience—that the if father, who lived more than 20 miles away at the time of the agreement, moved "closer" to the mother's home, a substantial change in circumstances existed and the father would be permitted to seek a modification of the schedule which the Court would determine in the children's best interests. The agreement lacked specificity: it did not detail how much closer the father had to move to the marital residence to trigger a review of the schedule.
The agreement also contained several common provisions which are pertinent in the resolution of this matter. The first is a non-waiver clause:A parent's failure to exercise any of his or her temporary physical residence rights will not preclude him/her from exercising any of the other rights of temporary physical residence described in this agreement and will not be construed as a waiver of any rights under this agreement.
Art. 7, §K(4). (In the section described as "Other terms Controlling Temporary Physical Residence"). One other clause in the General Provisions section of the agreement is also relevant: Neither this agreement as a whole, nor any specific provision will be amended or modified or deemed amended or modified, except by an agreement in writing subscribed and acknowledged with the same formality as this agreement. Any waiver by either party of any provision of this agreement or any right or option will not be controlling, nor will it prevent or estop such party from later enforcing such provision right or option, and the failure of either party to insist in any one or more instances upon the strict performance of any of the terms or provisions of this agreement by the other party will not be construed as a waiver or relinquishment for the future of any such term or provision, but the same will continue in full force and effect.
Art. 21, §B. See also Art.21, §I (failure to insist on strict performance is not a waiver of a right to insist ons strict performance unless in writing).
2. The Procedural History of this Matter
It is undisputed that, a year after the divorce, the father moved "closer" to the mother's residence. Thereafter, the father filed an order to show cause on January 15, 2020, seeking a finding of contempt for the wife's failure to follow the original judgment of divorce, seeking expanded visitation with his sons and an order that the mother and father be prohibited from discussing "any aspect of the litigation" with the children. The Court signed the order on the [*3]same day and included the requirement that neither parent could discuss any aspect of the litigation with the children. The ordered paragraph reads:Ordered, both parties are prohibited from discussing any aspect of this litigation, the judgment of divorce, the party separation property settlement agreement or any scheduling issue with the children.
After the father's signed order to show cause was filed but before it was served, the mother filed a simple form petition for modification of the visitation terms in the judgment of divorce in the Wayne County Family Court on January 17, 2020. The petition, in responding to the question of whether a change in circumstances had occurred, reads, in hand written form: "the children's wishes have changed." It added, the petitioner — the mother — "requests shorter hours." There is no evidence before this Court as to when this petition was served, if at all. The petition did not contain any further information or exhibits. Meanwhile, the father's first order to show cause, containing the prohibition on discussing the litigation or scheduling issues with the children, was served on the mother on January 21, 2020.
The mother, in response to the order to show case, filed an affidavit in opposition on February 10, 2020. In her sworn statement:1. She complained that the husband's actions were frivolous and the attorney who handled the matter was engaged in harassment.2. She explained how a dispute arose over a December week in which the father sought an extra dinner during the week.3. She argued that there was no basis for a finding of contempt because she had not engaged in any wilful conduct, as the children were "unwilling to go for the dinner visit."4. She claimed that the father's relocation was not a substantial change in circumstance to justify any expansion of visitation time.5. She attached a letter from the children to their father, dated almost a year earlier, which asked the father to return the children to their mother earlier on Sunday afternoon.6. She noted that during the fall school semester the children came home at 5 pm on Sunday and that the children "expected this same schedule to continue," as it had been allowed for the last eight months. She accused the father of going "back on his agreement that he had with the children" regarding the Sunday return time.7. She double-checked with the children that they wanted the return time changed, prior to filing the petition in Wayne County. She claimed that the children's "wishes had changed" and "this constitutes a change in circumstances, according to the Court." She did not specify which "court" had told her that conclusion.8. She concluded that allowing the Sunday overnight would "cause an undue hardship" to the children and constitute a "major disruption of their schedules and their lives" and they were adamantly opposed to the change.9. In five pages and 40 paragraphs, she described that having one weekday evening meal with their father was evidence that he did not have the best interests of the children in mind.
The father, seemingly in direct response to the wife's affidavit, filed a second order to show cause on February 14, 2020. This second application corrected a mistaken reference to the judgment of divorce, now seeking to enforce the amended judgment of divorce dated January 10, [*4]2019. It also sought the removal of the family court petition filed in Wayne County by the mother. Otherwise, the father sought the same relief he previously had: a finding of contempt for the mother's failure to follow the amended judgment of divorce and modification of the agreement's visitation provisions.[FN1] The second application included a repeated request for a temporary order barring both spouses from discussing the litigation with their sons. The Court granted this request when it signed the second order to show cause and the mother was served on February 15, 2020.
Ten days later, after she was served with the second order to show cause, the mother, on behalf of her children, filed an amended family court petition in Wayne County asking the court to modify the judgment of divorce on the allocation of visitation. In describing the alleged change of circumstances, the mother attached two items:(A) The first attached document was a typed written submission by the wife. In it, the wife alleged:(I) the father lacked the ability to provide for the children's intellectual development, and referenced several episodes where the sons failed to complete their homework and in which their father could not help them;(Ii) that homework had increased since the agreement was signed;(Iii) that a modification should be granted when requested by a child 12 years old;(Iv) that there was an "informal agreement" between the parents regarding the Sunday night "return time" and a second "informal agreement" regarding dinner visits with the father; and,(v) that the children did not "feel they can handle dinner visits during certain weeks."
The mother's typed submission also contained another note in which she suggested that the children had written a letter to their father in April, 2019 requesting an alteration in the Sunday return time. The mother typed: "This letter has been previously provided to the Court." The April 2019 letter was not attached to the petition. (B) The second document attached to the mother's petition was a letter, apparently written by the couple's 10-year-old and dated February 19, 2020 four days after the mother was served with the amended order to show cause. The letter was addressed to the family court judge in Wayne County and the letter indicates:(I) the sons wanted to keep the informal schedule "so he [the father] can't keep changing his mind:"(ii) they complained that they could no longer come home early on weekends, "though he had let us for the last eight months; and,(iii) the sons were upset that the father "continues to ask for dinners," and that "we have refused to go" and they wanted only to go to dinner when there was no soccer or sports.
The mother in her typed submission also said that this letter — the February 19, 2020 letter — "was previously provided to the Court." There is no evidence in the family court file in Wayne County or the files of this Court that the letter had ever been provided to either court.[FN2]
After the service of the second order to show cause, the mother filed an affidavit in opposition. The mother, acting again on her own behalf, opposed the application:(A) she admitted that she had "double-checked" with her children regarding a change in the visitation times;(B) she averred that the children, even one aged 12, could request a change;(C) she alleged that her sons needed help with homework, especially, math homework and she acknowledged that all of her sons had consistent grades, in all subjects, in the 90s;(D) she argued that the father's move of his residence was not a change in circumstances to warrant a modification of the agreement;(E) she said that "car time" — apparently time when the father was driving back and forth to either his home or the children's sporting events — would give the children time to interact with their father.[FN3]
The mother argued, in strong terms, that the sons needed to be in her residence on Sunday night, as she assisted them with homework, particularly mathematics at which, it is undisputed, the mother, with an accounting tax background, has significant skills. In essence, the mother argued that the father, despite the language in the agreement allowing a change in visitation time contingent upon his moving closer to the marital residence, was without any relief, and that the schedule utilized prior to the father's move should govern in the future.
The application for an order to transfer the family court petition to supreme court was argued on February 28, 2020. During that oral argument, the mother made it clear that the children did not want to have any dinner visits with their father if they had competing soccer practices or other activities. In response, this Court told the mother that it had, in the past, imposed a series of restrictions on households when children failed to follow lawful visitation orders. The Court described its restrictions as a form of "house rules," which would be imposed [*5]by the residential parent against children who failed to follow lawful visitation orders. The Court told the mother that the Court would order the mother to restrict the children's privileges and access to extracurriculars if the children failed to attend visitation and, to its best recollection, the Court also told the mother that the Court could hold a residential parent in contempt if the parent failed to strictly enforce the disciplinary restrictions set forth in a court order. After oral argument on the second order to show cause, the court, on March 7, 2020, issued an order to consolidate and transfer the family court petition by the wife with the supreme court order to show cause. The Court agreed to appoint an attorney for the children and reserved all claims to the parties.
On March 16, 2020, the father filed another order to show cause. In this application, he sought contempt and other relief, similar to his earlier requests. He repeated the ordering language barring either parent from discussing any aspect of the divorce or schedule with the children. In addition, the father noted the mother's inclusion of the February 29, 2020 letter from the sons to the judge presiding in the Wayne County family court proceeding. The letter confirmed, the father argued, that the mother had spoken to the sons "about the pending ligation." He argued:she had the letter prepared in response to the motion I filed to dismiss her family court modification petition and then supported for amended petition. The boys knew exactly what was in my original and amended order to show cause and what the mother planned on including in her amended family court petition.[FN4]
The father further alleged that the mother had spoken to the children about the father's intended dinner visit with his sons on March 11, 2020. The mother sent the father an email stating:"the kids have not changed their minds from what they told you last night." He further alleged that when he went to pick up his sons, his mother-in-law came out of the house and told him that "there would be no dinner visits until the issue was decided by the AFC."[FN5] In view of these facts, the father asked this Court to implement the "house rules" directives it discussed with the litigants during the oral argument on February 28, 2020. The Court concurred. The paragraph inserted by the court in hand writing reads as follows: ORDERED, if the parties children do not go with the father for his weekly dinner visit per the amended judgment of divorce then defendant is directed to remove and not let them play any portable devices (phones, tablets, computers) from the children; discontinue any extracurricular activities for the sons; not transport them or let anyone else transport them to any events other than school or church; prohibit them from visiting any friends or relatives or having such visits in her home; restrict the telephone conversations with anything other than their father until the children attend the weekly [*6]visits with their father.
In response to the father's third order to show cause, the mother, still appearing unrepresented, disputed the father's rendition of interactions with her children and her mother. She also argued that the father "should be able to have the dinner visit when they do not have activities." She also noted that the father had unilaterally changed the Sunday return time from 5 pm to 6:30 pm, which upset the sons. The attorney for the children, prior to the argument on the order to show cause, argued that the children, having "hectic" sports and extracurricular schedules, preferred to keep the dinner visit a "floating" visit. She also argued that the children had an "agreement" with their father about his visitation and that they were upset when he asked for more time. She argued, as the mother did, that the father's move, while "closer" was "not close." She argued that it would be a "detriment" for the children to neither return to the stipulated schedule or have an additional overnight, as "this does not fit with the children's lifestyle or practice." The changes proposed were solely for the benefit of the father "without consideration of the children's lifestyles and practice and wishes."
After oral argument, the Court issued an email decision, rejecting the notion that the father was required to show a change in circumstances, having concluded that there was no dispute that he moved "closer" to the marital residence and that the agreement gave him the right to petition for additional visitation. The Court stated:the parents agreed that the best interests of the children would be met by allowing father to ask for more time if he moved closer. It is inescapable that the inclusion of this language was designed to allow the father more time if he moved closer. The agreement highlights the fact that the father's residence in Pittsford was a long way for the sons to travel for visitation and both parents seemingly recognized that the extended travel - to and from Pittsford to Wayne County — would not be ideal for their sons. But, they also acknowledged that if the father moved closer, then that objection and the only objection raised in the agreement to expanded time for the father - the travel time - would be removed. It is impossible to read this language in any other fashion: the father, having moved "closer" was never going to ask for less time or just keep the time that was allotted when the agreement was signed, a situation which the mother now seeks to preserve.
As a result, the Court further held that the father was entitled under the agreement to a modification of the visitation time and granted him the requested additional Sunday night overnight in a temporary order. The Court added: In short, in this case, the only objection to increased time for the father is that it would upset, to some extent, the sons' routines. Preservation of the sons' routines does not trump a father's right to spend time with his sons, especially when there is no evidence that the minor disruption, caused by a single additional night with their father every two weeks, would adversely impact the sons.[FN6] In reaching this conclusion, the Court notes that expanding time for the father may disrupt his relationship with his sons, especially because this Court's order contrasts with their expressed wishes. However, handling that challenge rests with the father and his parenting skills and given the temporary nature of this revised schedule, the Court maintains jurisdiction over a final determination of the children's best interests.
The Court's order extended the father's visitation to a Sunday overnight, reiterated the "house rules" requirements in the earlier order, maintained the bar on either parenting discussing any aspect of the litigation with the children and sent the remainder of the requested relief off to a hearing. The order was entered June 2, 2020.
As a final effort to enforce his visitation rights, the father brought another order to show cause on June 27, 2020. In it, the father related that his sons had refused to participate in the extended overnight on Sunday evening.[FN7] He indicated that the mother told him on two occasions when he arrived to take his sons for the weekend that "the boys were not coming." He explained that he had a dinner visit with his sons and it was "generally anti-social." He alleges that they told him that "the only reason we came was to yell at you and the child lawyer told us we would get our electronics back." The father said his children described him as "a loser," "liar, lazy and stupid." The father alleged that the children's attorney sent an email to the father's lawyer in which she said that the boys regard the father as "the enemy." He said that his youngest child was "quoting passages" from the mother's "court documents" as the reason he was mad at his father. The father concluded:I am in a no win situation. If I do nothing, I lose any semblance of a parent and would have to let the boys make all the custody related decisions for the rest of their lives. Alternatively if I move forward with my request for more time they will continue to see me as the enemy. I choose the second option. I will not let our boys believe they can do what they want, when they want in life much less that they have the discretion whether to follow the Court's orders or not.
In that application, the father sought a reduction in child support and an amendment to the earlier "house rules" order which would have confined the children to their rooms "all day, every day" for all time other than meals. The court crossed out both of those requests in the order to show cause.
In response, the mother, now represented, argued that the temporary order did not change the weekday dinner schedule and, although the sons had not participated in that weekday dinner, [*7]there was no violation of the original weekday dinner visitation schedule. She also argued that, in fact, the father had violated the court order barring either parent from discussing the schedule. She related an incident in which the father discussed future scheduling with his sons in his car in March 2020. This incident, and the others related by the mother, were based on hearsay, after conversations between the mother and her sons. The mother also relayed a conversation in which her sons told her, after a discussion with their attorney, that they "would accept the punishment rather than stay overnight on Sundays." She recounted a series of episodes in which the children relayed arguments with their father over his request for additional time and the "house rules" that were imposed on them. The mother also alleged that the sons told her that father had mentioned the amount of child support he pays, which the mother noted could only have come from the father.[FN8]
In response to the father's allegations about violations of the temporary order, the mother admitted that the children were taken for hair cuts, medical and dental appointments. The mother also acknowledged that her mother visited the children to "help with homework" and home schooling the children. The mother argued that the grandmother's visits could not be deemed a violation of the order. The mother contended that having her parents over to her house to celebrate her birthday with her sons was also not a violation of the agreement. She argued:Similarly, he knows how much the children love their various extra-curricular activities. Prohibiting them from participating in soccer or any of their other sports activities would be devastating to the children, not to mention the impact that it would have on their relationship with their father. The children are smart and mature. If the Court were to impose even stricter punishment, they would most certainly deduce that it was because of their refusal to go on the weekend visits (they have gone on the dinner visits) and that the Plaintiff is forcing this issue with the Court. This would cause a further deterioration of their relationship with their father.
The mother concluded that the father would "yield better results and improve his relationship with the children if he listened to their wishes and tried to work with them to come up with a schedule or an expansion of time in a different way."
The husband responded the next day: he noted that he had not been accorded his weekday evening visit when he brought the original order to show cause. He acknowledged that the first set of house rules worked and the children attended the weekday evening visit. He cast the incident involving the boy's birthdays in a light different from the mother. He also alleged that the children ignored him on Father's Day but visited their grandfather on Father's Day, and entertained her parents at her house on her birthday. He argued that permitting their oldest son to travel to work also violated the order. He concluded by arguing that the temporary order needed to be clarified that the boys were barred from bike rides, car rides and walks, that his oldest son could not be driven to work and that no one was allowed at their mother's house other than their father to pick them up. The father also asked that the Court define Wednesday as the weekday [*8]dinner night. After oral argument, this Court reserved on the pending motions and the request for contempt.
3. Dismissal of the Mother's Application in Family Court
In her initial application to the Wayne County Family Court, the mother alleged, as the basis for modification, that the "children's wishes" had changed. The Court of Appeals explicitly held that a change in the child's wishes, without more, does not justify altering an agreed visitation plan:This is all the more so where, other than children's wishes, there is no change of circumstances, especially with respect to the crucial matter of fitness, to justify a modification of the custodial arrangements which the parties themselves determined was best for their young children. Where there is no material change of circumstances, there is no foundation for a modification petition.
(Ebert v Ebert, 38 NY2d 700, 703 ; accord People ex rel. Schussler v Schussler, 86 AD2d 787 [2d Dept 1982]). In her amended application, the mother simply bolsters that original claim. She alleges that her sons' homework has increased, an easily foreseeable circumstance as the children advanced in school. Her claims that the husband cannot help his children with homework is hardly a change in circumstances.Whatever lack of education the husband had at the time of the divorce, there is no evidence that it has changed and this Court, in its earlier email decision, noted that the children had numerous methods of communicating with their mother if mathematical issues arose while doing homework at their father's residence. In short, despite her best efforts to boot strap an argument for a change in circumstances, there is only one — the children do not want to abide by the visitation plan that their parent's agreed to.
As noted earlier, this Court resolved the mother's argument that the move was "not close enough:" there was nothing in the agreement that defined "closer" and it is undisputed that the father moved closer. Under these circumstances, the mother's suggestion that the father had to show a change in circumstances is without merit: the agreement expressly provides that the move was such a change. A similar fate accompanies the alleged "informal agreements" between the father and mother over the visitation times and which the mother claims is a change in circumstances. The separation agreement specifically states that such agreements to modify their separation agreement must be in writing — there is no evidence of such a writing here and hence, any informal agreement to modify visitation times between the father and mother is unenforceable in this Court. The separation agreement also clearly states that even if the father occasionally waived his rights under the agreement, he has not waived his right to insist on strict compliance in the future.
As for the informal agreements between the father and his sons, neither the mother nor the AFC suggest that these "agreements" have any binding force on the father's rights under the separation agreement. The sons may believe that these so-called agreements are somehow binding and may reasonably be irked that their father, having suggested that he would agree to modification of his visitation times in conversations with his sons, has failed to follow them. These "agreements," however, do not bind the father in exercising his rights and their mother agreed to that provision in the separation agreement. The mother cannot reasonably suggest to her sons that the father is obligated to honor any "informal agreements" when the signed [*9]agreement expressly holds otherwise.[FN9]
In short, the parent's visitation agreement in this case silences many aspects of the arguments advanced by the mother and by the AFC that "informal agreements" — either between the mother and father or between the father and his sons — modify the father's rights in the separation agreement. For these reasons, the mother's application to modify the visitation plan, filed in Wayne County, is denied and the application dismissed.
4. The Modification of Visitation — the Parent's Definition of "best interests."
At the heart of this dispute is a fundamental issue for the New York courts: Who decides the best interests of children? In New York, there is no doubt of the answer to that question: despite what teenagers — or their attorneys — say.[FN10] The first step in defining the best interest of children is to return to their parents, who as joint custodial parents in this case hold the final decision-making authority. New York is a parent friendly state: our courts routinely note that it is in a child's best interests to have regular and meaningful contact with both of his or her parents (see e.g. Zwillman v Kull, 90 AD3d 774, 775 [2d Dept 2011] ["The best interests of the child lie in being nurtured and guided by both parents. In order for the noncustodial parent to develop a meaningful, nurturing relationship with the child, visitation must be frequent and regular"]). The New York courts do not allow a judge to substitute his or her judgment for those of parents unless special circumstances exist, usually the inability of the parents to agree on the best interests of their children. But, once parents have exercised that power — to agree on what exposure the children should have to each parent — the New York courts must decline to intervene further unless there is a substantial change in circumstances (see Martyna B. v Marlo M., 185 AD3d 497 [1st Dept 2020]; Matter of Shonyo v Shonyo, 151 AD3d 1595 [4th Dept 2017]).
In this matter, the parents did agree on a visitation plan: it originally did not include the now disputed Sunday overnight once every two weeks with the father. But, they did agree on a continency that impacted the best interests of their children: they agreed that if the husband [*10]moved closer, the best interests of the children would be best served by further consideration of visitation. In evaluating the arguments of both parents on this issue, there can be little dispute that the parties, when agreeing to the "closer" provisions, envisioned that the father would ask for — and expect — more time with his sons. It is inconceivable that the father would have sought the "closer" language if he merely intended that no beneficial change in visitation would occur. It is equally inconceivable that the mother, having agreed to the "closer" language, would now argue that it lacked any meaning and that father's visitation opportunities should not be modified, evenly slightly. "[T]he only reasonable interpretation of the [agreement] is that the [closer provision] was for [plaintiff]'s benefit" (Gay v Gay, 118 AD3d 1331, 1334 [4th Dept 2014]).
The mother seeks to overrule New York precedent that gives parents the presumptive determination of their child's best interests. She suggests, in no uncertain terms, that the father should negotiate his new visitation schedule with his children. This Court rejects even the supposition behind that claim. Absent extraordinary circumstances warranting court intervention, visitation — parents' access to their children — is first and foremost an issue negotiated between those self-same parents. In this case, the parents decided the best interests of their children in the visitation plan and, as noted above, left an open door for the father to request additional time. It would flip parenting on its head if this Court even suggested that children had the power to negotiate visitation with their parents. In even suggesting that her children should "negotiate" their best interests in the interaction with their father, the mother abandons her role as joint parent. She, in essence, transforms the children into the equal of their father and she substitutes them as her emissaries in restricting the father's access rights.
Children, even those entering teenage years, are not parents or even adults. They do not get to decide their best interests: the parents make those decisions. A parent, in deciding a child's best interests, can accommodate the children's "lifestyles and preferences." The parents here did just that: they acknowledged their children's busy lives and limited the father's time with his sons if he lived far away. But, the children's lifestyles do not trump the father's access rights, which he negotiated with their mother and to which she agreed.
For these reasons, the Court grants the father's application to expand his alternate weekend visitation with his sons to include an alternate Sunday overnight until school or, if no school on Monday as a result of a holiday, then until 9am Monday morning and the Court also confirms that the dinner visitation with his sons will occur on Wednesday nights.
5. Enforcing a Parent's Visitation Rights—Imposition of the House Rules
At the heart of this inquiry is an age-old question—common to New York matrimonial judges. In the parlance of judges and matrimonial practitioners, who drives the bus?[FN11] Do children get to decide what schedule they will keep with their parents or vice versa? The answer is just as old and ironclad. Parents make decisions for children until they turn 18 (see DRL §2 [*11][minor is under the age of 18]). Until then, parents drive the bus for children of all ages. Children cannot enter into contracts or take about any other legal steps without parental approval and, if there is joint custody, then without approval from both parents (see Hight v McKinney, 164 Misc 2d 983 [Fam. Ct. Chemung Cty 1995]).
With that understanding, how can a child be disciplined by a parent in a joint custody circumstance if the child refuses to participate in court-ordered visitation? The answer has to lie with the common rules of parental control. Parents, since the days of Methuselah (if not before) have used common techniques to obtain a child's compliance with reasonable rules and restrictions. The easiest rule is to threaten to take away privileges: driving for older children, access to "screens" for junior high school students, permission to visit friends, sports camps, extracurriculars and other pursuits that children — of all ages — enjoy.[FN12] When these privileges are threatened by both parents, the child is confronted with no alternative: either comply or do without. The child often loudly complain. Slammed doors, vulgarities muttered under their breath, appeals to grandparents or other relatives are common tactics to weaken parental resolve. But, eventually, the child, weighing the often easier consequence of compliance with the threatened continued personal disappointment and distress of non-compliance, finds that accommodation is the best alternative. The child follows the rule and the threat recedes. When the threatened consequences fail to achieve compliance, parents, united in their purpose as joint custodians of the child's best interest, are left with no alternative: the penalties are imposed until compliance occurs. A stubborn child may be willing to suffer the consequences until parental resolve weakens. But, if that occurs, the child is now emboldened and any future threats of consequences for non-compliance may easily be shunted aside with a notion that the child can "wait-em-out" and eventually get their way. In the former disciplinary scenarios, using our parlance, the parents drive the bus — they have determined the child's best interests. In the later scenario, when parents concede to the child's refusal, the child drives the bus and the child decides their own best interests as superseding that choice by their parents.
These scenarios are complicated in divorced households, when one parent seeks a child's compliance with certain rules and the other does not support imposing the rules. The scenario is further complicated when the "rules" are court orders that require the child to participate in visitation with a fit parent. In this Court's view, the Court, now acting to enforce the parental decision of the children's best interests, must have some tool to seek compliance from children, who disagree with their parent's joint decision of their best interests. The tool that this Court selected was the same used by parents for centuries and which the father, seeking the additional time that he bargained for in his separation agreement, sought and continues to seek from this Court: an order that unless they complied with the Court order and visited with their father, the Court would, issue an order enforcing the father's proposed disciplinary process. Because it [*12]would not be appropriate for the Court to order the children to comply under threat of contempt,[FN13] and because the children were within the household of their mother, the logical step was to require the mother to enforce the best interests of the children by requiring her, as the primary residential parent, to take away the privileges and restrict the children's activities until the children comply with the Court order. The only other alternative is to have the Court do nothing: throw its hands up in the air, declare that the children have ultimate authority and no one can force them to see their father. At that point, this Court — and every court in New York — has an answer to the inquiry that drives this Court's analysis: who drives the bus? In this scenario, the children do. They get to decide their best interests. They become their own parents. They are shielded from any consequences for their failure to visit with their father because the mother does not want to impose any penalties on their failure to abide by what both parents agreed was the children's best interest.
In this case, the parents have a conflict over what rules should be imposed to ensure visitation: the father insists on strict curtailment of privileges, and the mother objects. The critical difference here is that the mother, by objecting, fosters the notion that the children decide how and when they must visit with their father, regardless of the contents of their parent's agreement. The father, by insisting, seeks merely the children's compliance with the agreed visitation plan negotiated by their parents. Importantly, the father's insistence on these rules is conditioned on only one thing: the children's compliance with their parent's visitation plan. Under these circumstances, in order to ensure the visitation rights of the non-custodial parent, this Court concludes that a court may impose reasonable rules on the children when in the residence of the custodial parent. The father only asks the Court to impose such rules until the children comply with their parents' visitation plan, and the Court makes it clear that, once they do, these "house rules" will be ended.
During the argument of these various applications, the children's attorney has urged that this Court should hear the children's voices: they do not want to visit with their father. They offer no justification, however; they just do not want to have someone dictate their schedule. They want to make that choice themselves and, as they say it, live their own lives. They tell the Court that they can decide their own best interests, a notion that this Court — and hundreds of other New York courts— have routinely rejected, in favor of parents making that decision. The other argument advanced here is that the oldest child is nearly an adult: he is aged 14. The other sons are 12 and 10. They are described an sensible and mature. But, the arguments advanced by [*13]the AFC and the mother fail on two counts. First, where, as here, the parents have defined their children's "best interests," a court can reconsider that parental choice only if a "change in circumstances" occurs. Here, the parents defined "best interests" to allow the father more time and, as numerous courts have noted, giving parents adequate access to their children is at the very heart of the children's "best interests." (Marino v Marino, 183 AD3d 813 [2d Dept 2020]; see Matter of Nicole Y. v Joshua X., 183 AD3d 996 [3d Dept 2020]). Second, the children's argument is without any age limit: the same argument — why can't the child decide their "best interests" — could be made by a mature seven-year-old. What is the age when a child gets to drive the bus? Shouldn't a parent get to impose reasonable rules on a seven-year-old child to get her or him to follow what their parents have decided is the child's best interests? Should parents restrict a child's activities if the child fails to follow reasonable parental directives? This Court defies any parent or judge to answer that question in the negative.[FN14]
In this case, this Court is not imposing rules just "for rules sake" or just to require a child to brush their teeth, make her bed or pick up her room, or even for that matter to go visit their grandparents. When a child is in the residence of a parent, the parent can impose reasonable rules for child behavior. This Court has not — and will not — intervene in those instances, leaving those different choices — when the child goes to bed, what they eat for dinner — up to each parent when the child resides with them. But, this matter does not involve personal hygiene or daily activities: it involves something more important — the father's right to enjoy time with his children. The father bargained for that right and his wife agreed to let him enforce that agreement. The restrictions imposed in the Court order are the same that a dutiful parent would impose to obtain a child's compliance with any important parental right.
Finally, the AFC, in a post-submission email to this Court, argues that the children are being held hostage and the restrictions are substantially impacting their lives, their development, their time with their mother's family and other pursuits. The restrictions designed by this Court are intended to do exactly that but, the notion that the sons are hostages or are being restrained in their daily activities against their will is misplaced. They have the key to relieve the restrictions: take time to visit with their father as their mother and father agreed the father should have. Once that occurs, the restraints imposed by this Court disappear. The AFC also argues that the father, in seeking this Court order, has unreasonably punished his children and that this Court should take his conduct, in seeking to restrict their busy social lives, as evidence of some malevolent inclination on his part.
In this Court's view, that argument is a serial assault on parenthood: a parent, seeking a child's compliance with a reasonable parental request, usually invokes increasingly severe penalties to obtain a child's compliance with any reasonable rule. When a child refuses to, say, [*14]eat their vegetables or go to their grandparent's anniversary celebration, the discipline track starts with "go to your room," advances to "no television," then, "give me your phone and your 'screen,'" followed by " sorry, "no ride to practice or ride to your friend's house," eventually reaching, "sorry, I won't sign the permission slip to play soccer."[FN15] These disciplinary steps are not novel but, instead universal. In a two-parent household only one thing prevents them from working: when the child says, " Dad/Mom, you can't do that, I am going to ask Mom/Dad to stop these rules." If the child detects that other parent caves and refuses to enforce the rules, the child gets what they want, one parent gets the child's approval and the other the child's scorn. In a post-divorce divided household, the same scenario plays out but the temptation for the favored parent to take the child's side is enhanced, especially if the result is not only scorn directed against their now distant former spouse but, as a corollary, the favored parent gets additional time with the children when they fail to visit with the other parent. The father here is seeking to impose reasonable restrictions on his children until they visit with him and this Court is extraordinarily reluctant to draw an inference of ill will from any parent's reasonable steps to seek a child's compliance with their reasonable — best-interests-directed — rules.
In adopting the house rules and seeking their enforcement against the mother through a finding of contempt, this Court cannot find any specific guidance in New York law. The New York courts have considered parents in contempt for violation of court-ordered behavioral restrictions, involving smoking in the children's presence, invoking corporal punishment or similar behaviors that impact children (see Matter of Munson v Fanning, 84 AD3d 1483, 1484 [3d Dept 2011] [smoking in violation of a court order could be considered contemptuous]; Matter of Tylena S. v Darin J., 4 AD3d 568, 571 [3d Dept 2004] [drinking in the presence of child in violation of court order could be considered contempt]; see generally Hudson v Hudson, 279 AD2d 659, 659-62 [3d Dept 2001] [court considered enforcement of an order prohibiting drinking in the presence of children or drinking any alcohol eight hours before visitation]; In re Nicolette I., 56 AD3d 1080 [3d Dept 2008] [violation of court order when father had consumed alcohol in violation of terms of order]). However, this Court has not found any guidance in New York law on holding a parent in contempt for failing to follow rules and restrictions that are designed to require children to follow court-ordered visitation plans.
Despite the lack of New York guidance, the mother has, perhaps inadvertently, provided the Court with guidance through a California decision. In the supposed defense of her inability to force her children visit with their father, the mother cited Coursey v Superior Court (194 Cal. App. 3d 147 ) to argue that she could not be held in contempt for the sons' failure to visit with their father because there is no proof of her ability to compel the sons to attend. While that case arises in California and is not binding on this Court, it is persuasive in a way that the mother never intended. First, other California courts have suggested Coursey has been overruled (see Knowles v Superior Court, 2008 Cal. App. Unpub. LEXIS 2616 [Cal.Ct. App. 4th Dist. 2008] [indicating Coursey was "overruled"]). Second, even more pertinent, an old-fashioned "shepardizing" of the Coursey matter leads to a contrary result. A more recent California case, which cites Coursey, indicates that if a parent drives children to extracurriculars or can drive [*15]them to events and meetings with their father, then the parent has "sufficient control over the children" and a refusal by the child, augmented by the parent's compliance with the child's request in derogation of a court order, can be considered a factor in finding willful violation of a order (Goldstone v Swan, A151760, 2019 WL 698040, at *6-7 [Cal Ct App Feb. 20, 2019] [noting numerous instances of parental complicity in the ongoing failure of visitation as a factor in concluding that parental control existed and a contempt finding was warranted]).
The facts in Goldstone were strikingly similar to those here. The mother in that matter, ordered to provide visitation to the father, testified that she insisted the children attend the visitation but they refused "because she was unsuccessful in forcing them" (id. at *3). The mother admitted, however, that while she could not get the children to travel to visit their father, she was able to take them to extracurricular activities. She also admitted that she did not take away the children's extracurricular activities or punish them for refusing to see their father "but claimed it was because they were stressed and distraught" and added that "it was upsetting for them to stay with their father overnight" (id.). The trial court in Goldstone found unpersuasive the mother's defense that she "cannot control the children," noting that she drove them to and from their extra-curricular activities and school, and drove one child to stay at a friend's house on a court-ordered visitation day for the father. The court concluded that the mother "indeed has a reasonable amount of control over the children and certainly had the ability to comply with Court ordered visitation or at a minimum make efforts to curb the children's behavior," but that "she did not make any such concerted efforts to comply with the Court order" (id at *4).
Here, the Court has not ordered the mother to guarantee that the children attend visitation, nor does it seek to hold the children, or their mother, in contempt for the children's refusal to attend. The Court's order simply requires the mother to take disciplinary steps — all undisputedly within her control — until the children visit with their father. There is ample evidence of the mother's control: among other things, she admits that she coaches teams on which her sons participate and drives team members to games and practices.[FN16] Moreover, the mother's defense in this matter is further eroded when this Court considers the evidence that the mother has violated the order's provisions regarding communications with the children about the pending court matter. The Goldstone court noted that the mother presented written statements from the child to the Court, after the Court had ordered her not to involve the children in the proceeding. The mother in Goldstone claimed that she had only facilitated delivery of a child's written statements to her attorney and presentation to the Court. She claimed that "it was the children who on their own resolved to have their views expressed to the court." The Court stated in response:Certainly one permissible inference from the evidence is that the children wrote their statements at Mother's (implicit) prompting or, at least, without her discouragement. And even if it were believed that the written statements were entirely the children's doing, it was still Mother who, instead of stepping in and stopping the children's involvement, affirmatively delivered the statements to her attorney for the attorney to transform them into declarations and present them to the judge.
[*16]Id. at 18. The exact same conclusion is easily justified here. The mother here engaged in the same behavior. The letter from the children, dated February 19, 2020 is indisputable evidence that the children knew, even before their attorney was appointed, about the terms of the proposed visitation change sought by their mother in Wayne County Family Court and the application from their father in Supreme Court. The mother here took the same steps as the mother in Goldstone: instead of tearing up the letter and stopping the children's involvement, she brought the letter to the Court, attaching it to her papers. She took the children's side in the dispute with their father, even though she had signed an agreement with the father which, in granting the father additional visitation, was directly contrary to the children's argument.
Finally, the father, in his last filed order to show cause, asks for further refinement in the house rules. He seeks a restriction on the mother's ability to sign up or give permission for her sons to engage in any sports, whether sponsored by the school or any other organization. As outlined above, this form of discipline seems directly appropriate: the sons claim that their extracurriculars and sports crowd out their time with their father. This Court will amend the house rules to prohibit the mother from executing any parental permission slip or other approval for any of the sons to participate in any sports or other extracurriculars and it further directs that if such permission has been previously rendered by the mother, without the approval of the father, such permission or other approval shall be immediately revoked by the mother, unless and until the children comply with the visitation schedule.
The father also requests that the children be barred from taking walks or riding bikes. The Court declines to take that step: physical exercise outside the home is essential to these young men and the Court declines to revoke that privilege. However, the same rules apply: the boys may not socialize with others on these rides and may not visit anyone's home or any other establishments. The father also asks that the Court exclude any visits to school, church or medical appointments and the Court will create an exception for those activities. The father also asked for additional rules, including confinement of the sons in their rooms while they are at home. While "go to your room," may work as a temporary disciplinary tool in some circumstances, it is inappropriate as a long term punishment, and the Court declines to include that restriction in any order. The Court notes that if any one of the sons participates in the agreed visitation, the house rules will be suspended for the duration of the time that that son visits with his father under the court order but will remain in full force and effect for any non-compliant child.
Finally, the father also seeks an even more drastic remedy: a change in primary residence for the sons. The Court declines to grant that relief as well: if the primary residence were changed, at this stage, it would substantially uproot these children from their school and other lives. While this Court is willing now to impose penalties that temporarily and conditionally change some aspects of the children's lives in an effort to get them to abide by the visitation agreement, the Court is unwilling, at this stage, to make the more severe change of altering where the children primarily reside.
6. Holding the Mother in Contempt for Failure to Follow the Temporary Order
With the issue of the Court's authority to issue the "house rules" resolved, the next issue becomes whether the mother can be held in contempt for failure to follow them. Each of the rules involves actions the mother controls: the mother must drive the children to activities and [*17]extracurriculars, including sports. The mother must consent to the children's involvement in activities and consent to anyone else driving the children to activities. The mother needs to give permission to have her children engage in school-sponsored activities. The mother needs to drive them to visit family members or attend weddings. The mother can forbid them to ride in vehicles with any other person. The mother owns the child's sports equipment. The mother controls the video screens and the phones and presumably pays the subscription fees for such services. The mother controls their access to any cars or other vehicles: she controls the bicycles that they ride. The mother can impose restrictions as to when and how they visit other peers. The mother owns the house where the children reside: she can deny anyone access to it. The mother has never denied that she has these powers: in her household, it appears, she drives the bus — as the residential parent should. It would be inconsistent for her to even suggest that she cannot, with reasonable assurance, restrict the children's activities. There is no evidence that the children will not follow the mother's rules and restrictions. They may come to this Court and claim that they do not want to follow her directive to visit their father but, they will follow all the other rules in her household. There is evidence that they do their homework when their mother directs them. There is no evidence that they will not follow their mother's house rules, whatever they may be.
In fashioning the order here, the Court is merely requiring the mother to impose rules, requested by her joint custodian parent, that are necessary to enforce their agreement on dividing the time with their children. The rules this Court has imposed simply require the mother to engage in conduct designed to encourage - strongly - the children to comply with their parent's definition of their best interest, as defined in their separation agreement. This Court, having ordered the mother to impose those rules, is doing nothing more than when it orders a parent to take a child to counseling, to drive a child to visitation, to give a child medications or to refrain from smoking or drinking in the child's presence. In those cases, it seems beyond dispute that a Court could hold a non-compliant parent in contempt if the order was wilfully violated. There is no reason the same result would not hold with respect to the "house rules" imposed here.
In opposition, the mother initially argues that her failure to enforce the court's order was not wilful. In El-Dehdan v El-Dehdan (26 NY3d 19, 33 ) the Court of Appeals explicitly held that "wilfulness is not a required element of civil contempt." The Court added that in order to adjudicate a party in civil contempt, a court must simply find: (1) that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect, (2) that the party against whom contempt is sought disobeyed the order, (3) that the party who disobeyed the order had knowledge of its terms, and (4) that the movant was prejudiced by the offending conduct. The party seeking a finding of civil contempt must prove these elements by clear and convincing evidence' and willfulness need not be established" (Breskin v Moronto, 172 AD3d 1298, 1299-1300 [2d Dept 2019]). Because willfulness is not an element, a finding of civil contempt can be made against the mother here without a formal hearing (see id at 1300 ["Since a showing of willfulness is not required to establish civil contempt, no hearing was necessary with respect to the defendant's intent"]). "A hearing is not mandated in every instance where contempt is sought; it need only be conducted if a factual dispute exists which cannot be resolved on the papers alone" (Martin v Martin, 163 AD3d 1139, 1140-41 [3d Dept 2018]; see also Sherril R.D. v Alfred B.D., 8 Misc 3d 1015(A) [Sup Ct 2005] ["Supreme Court properly held defendant in civil contempt without a hearing, since it was clear from the papers submitted to the court that [*18]there was no issue of fact to be resolved"]; Doors v Greenberg, 151 AD2d 550 [2d Dept 1989] ["Contrary to the respondent's contentions, we find that the Supreme Court properly granted the petition and adjudged him to be in contempt, without conducting a hearing to determine the willfulness of his conduct"]).
Under these legal principles, the Court makes the following determinations.
(A) Discussing the Visitation Issues with the Children
The mother, in her initial affidavit, acknowledges that she discoursed visitation and the court orders with her children after the first order to show casue, containing the language barring such conversations was served on her. She swore, under oath, that she had "double-checked" with her sons before filing the first family court petition. This constitutes an admitted violation of the court order barring such conversations.
Second, the mother brought the children's letter to Judge Barrett to the attention of the courts when she filed it as an accompaniment to her responsive pleadings in this matter. While the mother denies creating the letter, the fact that the children knew that Judge Barrett was a family court judge in Wayne County who might hear their mother's request for modification of the visitation plan and the fact that she conveyed it to the courts is evidence that she discussed the visitation issues with her sons, a violation of the order.
(B) The visits to and away from the Home
In her own affidavit, the mother acknowledges that the children's grandmother visited the mother's home. The mother argues the Court cannot deem it a violation of the court order. However, the order specifically requires the mother to bar any relative from visiting with her sons. There is no exception for "homeschooling" the children and the mother has never requested such an exception to the Court's order. The mother also admits that her parents visited her house on her birthday and her sons were in attendance. While she claims that she did not believe this visit to be a violation of the order, it was clearly a violation of the express order that barred relatives from visiting with her sons, so long as the sons refused to visit their father.
The mother also acknowledged that she took her sons to visit their maternal grandparents after the issuance and service of the order to show cause. The order specifically bars that conduct by the mother. Furthermore, the mother admits that her parents came to her house to celebrate her birthday and her children were in attendance. The mother argues that the court order was not intended to deny the mother time with her parents. The argument misses the point: the order was designed to bar the children from engaging in events with anyone outside their household, including their maternal grandparents. The mother could celebrate her birthday with her parents but, under the order, the children could not attend, whether in the mother's house or at the grandparent's house, unless they visited with their father.
(C) Father's Day
The sons did not participate in Father's Day with their father but they did participate in a Father's Day celebration with their grandfather and the mother facilitated that celebration by driving the children to her parent's house. The mother admits this conduct occurred. This conduct violates the order because the children still were not following the visitation schedule with their father.
(D) Allowing a son to work
The father alleges that the mother's permitting her 14-year-old to be employed violates the [*19]terms of the "house rules." This Court holds that the mother's allowing the child to work does not expressly violate the terms of the prior court order. However, as part of the other relief which as to the Court may seem just and proper — the father's prayer for relief on this matter — this Court amends the earlier order to prohibit the mother from signing any permission slip or granting any other approval for the oldest son to be employed in New York (see Education Law §3217  [b] [written consent of a parent required for a work permit]). If the mother signed such a permission, then she shall revoke it within 10 days of the entry of the order from this decision and henceforth, only the father may sign such a permission or grant authority for any one of his sons to be employed in New York. However, driving the child to his employment would violate the terms of the temporary order. At this stage, the Court does not have sufficient proof that the mother has driven the child to work and therefore, that alleged violation of the order is deferred to the hearing.
In this Court's view, these violations, admitted by the mother, provide clear and convincing evidence of a violation of the terms of the court order and justify a finding of civil contempt and imposition of penalties (see Ferrante v Stanford, 172 AD3d 31,39 [2d Dept 2019] [penalties appropriate if rights have been prejudiced but an actual loss or injury is incapable of being established and the penalties can include costs and expenses including attorneys fees]). With these contempt findings in mind, the Court allows the mother to purge these findings through the following:(A) The Court requires the mother to finance family reunification therapy for the children and their father with a recognized therapist. The mother and father, as joint custodial parents, will mutually select the therapist and the therapy shall begin as soon as possible. The mother will drive the sons to the therapy as necessary. The therapist will decide when and under what circumstances the father and mother will participate in the therapy. The mother shall finance the first $7500 in therapy cots. After that sum has been expended, the couple shall each share half the cost of any additional therapy recommended by the therapist.(B) The mother will pay an award of attorneys fees and costs to the father for the fees and costs to bring this motion. Gottlieb v Gottlieb, (137 AD3d 614 [1st Dept 2016]).[FN17] The father's attorney shall submit a fee affidavit within 10 days after the entry of the order from this decision and the Court will award appropriate fees and costs.
However, this Court cannot weed out the contrary claims related to other violations of the Court order barring conversations with the children about this proceeding. There are conflicting versions from both parents that relate to conversations with the children that require further testimony. The mother alleges the father has spoken to the children about visitation on numerous occasions: the father makes the same allegations against the mother. Therefore, while the Court finds the mother in civil contempt for the violations of the "house rules" as described above and allows her to purge those violations as described, the Court will hold a hearing on other claims that allege violations of other portions of the Court's orders and will refrain from imposing any financial penalty — other than legal fees — on the mother for the violations cited [*20]above until those further claims are resolved at a hearing.[FN18]
In view of the issues raised in this application and the mother's response, the Court also amends the prior order as follows:(A) the mother may permit the children to engage in runs or ride bikes, provided they do not stop or stay at any location with their peers or othr family members; and,(B) the mother may drive the children to hair cuts and any dental or medical appointments as necessary, provided she gives the father 24 hour notice of the appointment and allows the father to attend.
7. A Reduction in Child Support
Finally, the father in his show cause order seeks one additional change: elimination or reduction of his child support obligation. A noncustodial parent's right to visitation is a right more precious than any property right (see Entwistle v Entwistle, 61 AD2d 380, 384 [2d Dept 1978]). A custodial parent should not ordinarily be allowed to enjoy the benefits of a support order when visitation is being denied (see Biamby v Biamby, 114 AD 22d 830 [1st Dept 1985]). This Court is extraordinarily reluctant to modify any support order in cases in which the recipient parent is paying the major costs of sheltering and providing basic necessities for children. Where support obligations are established by a valid contractual agreement which is incorporated but not merged in the parties' judgment of divorce, the bargained-for support obligations should not be altered "[absent] a showing of an unanticipated and unreasonable change in circumstances" (Matter of Boden v Boden, 42 NY2d 210, 213 ). But, in this instance, the children's refusal to spend time with their father had no reasonable justification, other than not wanting to visit. It seems that the children's refusal to spend time with their father — without any reasonable justification based on their father's conduct — constitutes an unanticipated and unreasonable change in circumstances sufficient to justify a reduction in support. In addition, in considering this reduction, the Court notes that there is evidence both that mother has violated the current order — by condoning and participating in visits by her mother and transporting the children to family events. There is also evidence that the mother has approved, if not encouraged, her sons in their failure to visit with their father. The mother's production of the letter from the children to the Court is ample evidence of the mother's active participation in her sons' refusal to participate in visitation. Therefore, effective September 18, 2020, the father's child support obligation is suspended until the three sons participate in the visitation plan detailed by this Court.[FN19]
In her opposition papers before the Court on the third order to show cause, the mother [*21]alleges that the father has violated the court order by discussing visitation and other issues with the children. These recitals in the mother's affidavit are all based on conversations with the couple's children. To that extent, the conversations all involve some level of hearsay. In addition, the mother did not cross-move to hold the father in contempt for violation of the court order. Therefore, these conversations offer little for the Court to consider in opposition to the father's current application.
If this Court fails to use the tool of the "house rules" to force the mother to discipline children who actions are against their best interests as defined by their parents, then the answer to the age-old divorce conundrum is established forever: the children, preferring their lifestyle to the one chosen by their parents in their agreement, drive the bus. The neglected parent then will be cast into the role of a hitchhiker, waiting, thumb out on the side of the road, hoping that someday the bus drivers will decide to stop, open the door and let him share their ride. All the while, the favored parent, having consented to give the children the keys, rides along smiling silently in the back of the bus.
The mother's application to modify visitation is denied and the application dismissed. He request to dismiss the father's final order to show casue is denied. The father's motion to confirm the restrictions or "hosue rules" contained in the Court's prior order is granted and modified to the extent provided herein. His request to modify visitation by extending the alternate weekend to Sunday overnight is granted, his right to visitation through a Wednesday dinner every week is granted. His application to hold the mother in contempt for failure to follow the house rules is granted to the extent described herein. His request for attorneys fees and costs is granted as detailed herein. His request for a further finding of contempt for failure to follow the agreement or for violation of the order regarding conversations with the children is reserved to a hearing.
SUBMIT ORDER ON NOTICE 22 NYCRR 202.48
Dated: September 18, 2020
Richard A. Dollinger, A.J.S.C. Footnotes
Footnote 1: Importantly, any characterization of the father's request to alter visitation under the second order to show cause, must be considered "modest." He sought two changes: first, to expand the alternate weekend visitation from Sunday evening to Monday morning, adding one Sunday overnight every two weeks with his sons. He also asked for a designated — rather than an uncertain — evening dinner. The later request was not a time modification from the terms of the agreement: it simply changed the dinner from an uncertain day in the week to a designated or certain day. The only substantive change in the visitation was that the father would now have three overnights every two weeks with his sons instead of two.
Footnote 2: Even a quick reading of the family court application strongly demonstrates that the mother had discussed the schedule with the children: she must have discussed it with them because she articulated their desired changes in the amended petition. Furthermore, the Court is exceptionally concerned about the mother twice indicating that letters from the children — one in April, 2019 and one in February 2020 — had previously been submitted to "the court." This Court has no information indicating the submission of any letters to any court and, quite frankly, would be alarmed if the mother had ever submitted such a letter to any court ex parte without the filing of a petition. The father has elected not to raise this issue but, this Court is substantially bothered by even the suggestion that this mother sent letters to a court before filing any petition with any court in this county or otherwise.
Footnote 3: The agreement makes no reference to car time as a substitute for visitation time.
Footnote 4: The letter from the sons was addressed to Wayne County Court Judge Daniel Barrett. There is no evidence that the sons knew the family court judge presiding over their mother's petition and, in the absence of any other evidence, this Court can only conclude that the mother knew and told them, which is circumstantial evidence of her role in concocting the letter.
Footnote 5: At that point, the Court had yet to appoint an AFC. The AFC appointment was not even offered until late April, based on the Court's records.
Footnote 6: In this decision, the Court must highlight that "inconvenience" is the only real objection to visitation offered by the mother — or for that matter by the sons through their attorney. The sons have no other objection: there is no claim of abuse, improper conduct, irrational behavior or substance abuse by the father. There is no evidence, other than shouting and loud disagreements between father and sons over visitation, any adverse impact on the sons from visiting with their father. The sons, according to their mother, have refused to eat meals at their father's hosue and been forced to make sandwiches at her house upon their return from visitation. But this behavior, voluntarily undertaken by the sons, hardly constitutes improper conduct by the father.
Footnote 7: The father, in further support of his application, attached a series of email and text message exchanges. Any reasonable reading of the text and email exchanges establishes one fact beyond any doubt: the mother viewed the children's soccer and sports schedules as more important than the father's visitation with his children. The wife, in one text, went so far as to suggest that the father, by insisting on his visitation rights, was complicating the schedule of other families and "3 coaches."
Footnote 8: The father offers a different explanation for how his sons learned about his child support payments. He alleges that his sons complained that he never gave anything to their mother or supported them. In response, he told them that he paid child support and financed gifts for his sons that their mother purchased.
Footnote 9: This Court acknowledges that the father's alleged promises to his sons to change visitation times or adopt a certain schedule may be a source of disappointment for the children and raise issues of trust between the father and his sons. To the extent that these feelings flow from the father's comments, the sons may be justified in these reasonable reactions and their altered view of the father's credibility. However, these emotional reactions do not alter the legal calculus here. The sons' reactions may make the father's quest to regain his sons' trust more difficult but those factors are not part of the Court's determinations: those issue are challenges to the father's parenting skills in the future.
Footnote 10: The children here are all minors under New York law (see Matter of Cokely v Crocker, 157 AD3d 1033 [3d Dept 2018] [age 18 for visitation orders]; DRL §2 [minor is under the age of 18]; In re Lavecchia, 170 Misc 2d 211 [Sup.Ct. Rockland Cty 1996] [an infant is deemed to lack an adult's knowledge of the probable consequences of his acts or omissions]). Once a person has attained age 18, that person can no longer be the subject of a custody order (see Lazaro v Lazaro, 227 AD2d 402 [2nd Dept 1996]; Simpson v Finnigan, 202 AD2d 592 [2d Dept. 1994]; Wibrowski v Wibrowski, 256 AD2d 172 [1st Dept. 1998].
Footnote 11: This Court has previously reviewed the issue of a child driving the bus in a change of a visitation plan (see Szalapski v Schwartz, 46 Misc 3d 1202(A) [Sup.Ct. Monroe Cty 2014] [the requirement - that a court conclude that a child's preference is supported by other facts - is consistent with the notion, well-established in New York, that a child, even a mature and rational one, cannot solely-decide what their best interests and to hold otherwise, would allow the child to dictate his own best interests - "drive the bus," so to speak]).
Footnote 12: The privileges included in this Court order are well-known in the literature of parental discipline techniques. See e.g., Morin, Taking Away Privileges to Discipline Children, verywell Family, March 1, 2020 (taking away cell phones, grounding teenagers, taking away video games as tools to discipline children and adding: "Don't give in when your child begs, whines, or complains. If you do, you'll reinforce those negative behaviors. Stick with the consequence for the specified time period, even when it's hard to do so.")
Footnote 13: The Court has been unable to find a New York case dealing directly with whether a child can be held in contempt for refusing a visitation order. There appears to be a split on the question in other State courts (see When Children Refuse to Visit Parents: Is Prison an Appropriate Remedy?, 37 Fam & Conciliation Courts Rev 83, 86  [Illinois has answered the question in the affirmative, while Alabama has refused to allow a child to be held in contempt]). Regardless of authority, however, this Court believes it would be inappropriate to hold children directly in contempt, because it would be contrary to one of the main tenets underlying this decision - that children do not have the power, and in most cases the ability, to determine their own best interests. It is the parents that define best interests, and thus the parents that should face the consequences of refusing to ensure appropriate visitation.
Footnote 14: A corollary of this issue also impacts this matter: if the oldest child, age 14, gets to decide his best interest and can refuse to visit with his father, how does the Court — or the father or mother — explain to the 10-year-old that he has to follow a different set of rules and visit with the father, when that child argues, consistent with his 14-year-old brother, that visitation is not in his best interest? The only answer to that question is that, under New York law, the children's best interests are defined by their parents. When the oldest child turns 18, he can decide whether to visit his father but until that occurs, all three must visit their father as their parent agreed.
Footnote 15: Although written in a more legal fashion, these are the exact rules that this Court required the mother to impose in this instance.
Footnote 16: The father is also a soccer fan: he describes that watching his sons play soccer is "one of the highlights of my life."
Footnote 17: The father's counsel may submit a fee affidavit after entry of the order and the Court will consider an award of fees after comment from opposing counsel.
Footnote 18: The attorney for the children field an affidavit requesting payment of her fees. The Court authorizes her transfer of $2500 into her personal account. There is an unpaid balance of $2,479.54 which should be paid in equal shares by these parents no later than September 30, 2020.
Footnote 19:The father also alleges that he is entitled to a reduction in support payments both because his maintenance from the mother had ceased and his annual income had declined by more than 15 percent. The first reduction is based on the couple's agreement and the second on statute. NY DRL §236(7)(d)(iii). Because this Court has suspended the father's child support, these arguments are rendered temporarily moot but, if visitation occurs, then these claims will be ripe for Court review.