Matter of Brady S v Darla B

[*1] Matter of Brady S v Darla B 2020 NY Slip Op 51619(U) Decided on December 14, 2020 Family Court, Monroe County Ruhlmann, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 14, 2020
Family Court, Monroe County

In the Matter of a Proceeding Under Article 6 of the Family Court Act Brady S, Petitioner,

against

Darla B, TIMOTHY B and JEANETTE B, Respondents.

In the Matter of a Proceeding Under Article 6 of the Family Court Act

DARLA B and TIMOTHY B Petitioners, v

against

BRADY S and JEANETTE B, Respondents.



Index No. XXXXX



Seema Ali Rizzo, Esq., for Brady S Nathan A. Van Loon, Esq., for Darla B and Timothy B

Assistant Monroe County Conflict Defender Sarah Splain Holt, Esq., for Jeanette B

Lisa J. Maslow, Esq., Attorney for the Child
Dandrea L. Ruhlmann, J.

This is a custodial dispute among biological Father, maternal Grandparents and biological Mother. Central to the dispute is that Grandparents do not trust Father. They view Father as a predator based on his prior conviction for statutory rape of Mother when Mother was age 15 and Father was age 21. Mother, now a 29 year old adult, has a nontraditional relationship with her daughter.

On April 27, 2018 the New York State Appellate Division, Fourth Department, reversed the decision of the Honorable Patricia E. Gallaher entered November 21, 2016. The Appellate Division found that maternal grandmother, Darla B (Grandmother) and maternal grandfather, Timothy B (Grandfather) had established that extraordinary circumstances exist regarding their then 10 year old granddaughter, Isabella S a/k/a Ellie S (DOB: xx/xx/2008) (Ellie). This case was remitted to family court to determine, after a hearing, whether it is in Ellie's best interests either to award primary physical custody of her to Brady S (Father), or to increase his visitation with her. Grandparents also petitioned this Court for sole custody and the cessation of Ellie's visits with Father. The Court held a combined hearing to address all pending matters.

The Court finds both that Father sustained, in part, his petition, and Grandparents failed to sustain their application for sole custody and the cessation of all visits with Father. Ellie's best interests necessitates an award of joint custody among Grandparents, Jeanette B (Mother) and Father with the exercise of zones of influence. Grandparents and Father shall share equal physical residency of Ellie, with Mother having scheduled parenting time.

Procedural History

By order entered November 20, 2009, the Honorable Patricia E. Gallaher, upon consent, granted Mother inter alia sole custody and primary physical residency of Ellie. Father had visitation once per month at Gowanda Correctional Facility where he was incarcerated. By order entered March 1, 2013, Judge Gallaher, upon consent, settled various petitions and ordered, inter alia, joint custody of Ellie to Grandparents and Mother, with Grandparents enjoying primary physical residency (the 2013 Consent Order). Father was awarded limited supervised visits, which over the course of a year were to increase both in time and frequency, and become unsupervised.

Father filed a petition for sole custody on April 13, 2015 and an amended petition for expanded visits on October 28, 2015, which alleged, in part, that despite the 2013 Consent Order, Grandparents refused to expand and remove the supervision over his visits. After trial Judge Gallaher rendered a Decision and Order entered November 21, 2016, which was appealed by both Father and Grandparents. The Appellate Division, Fourth Department reversed that [*2]decision and reinstated in its entirety Father's amended petition for a change in custody or increased visitation. The Appellate Division found Grandparents had proven extraordinary circumstances and remitted the case to Family Court for a best interests hearing.

While the appeal was pending Father filed an Order to Show Cause on January 23, 2017 seeking enforcement of the Order of Custody entered November 21, 2016. By Order entered November 28, 2017, the Honorable Stacy M. Romeo, upon consent, granted Father inter alia sixty (60) hours of make-up visits, and the parties withdrew all pending applications.

Grandparents thereafter filed a petition on August 14, 2018 seeking inter alia sole custody and the cessation of all Father's visits. Mother filed a petition on September 26, 2018 seeking primary physical residency. By temporary order entered October 17, 2018 the Honorable James A. Vazzana granted Mother unsupervised visits with Ellie each Saturday from 10:00 a.m. until 6:00 p.m. and Father unsupervised visits with Ellie each Sunday from 10:00 a.m. until 6:00 p.m. Mother withdrew her petition for primary physical residency before the Honorable Fatimat O. Reid on January 15, 2019. Judge Vazzana denied Grandparents' motion to vacate his temporary order on March 12, 2019. Ultimately Grandparents' pending petition, and the remitted case were transferred to this Court for trial.

Findings of Fact

Credibility

The Court took testimony over ten days. Five witnesses testified: Father, Mathew J, Grandmother, Santo W. Bentivegna, PhD [FN1] and Grandfather. The Court finds the witnesses' testimony overall to be credible, with the exception of Grandmother. Grandmother had selective lapses in memory rendering her testimony unreliable. The Court also found her to be a hostile witness. Indeed, Grandmother could not remember how many visits Grandparents had denied Father, and she failed to produce her calendar reflecting the missed visits. Grandmother's testimony was impeached further when she asserted that she could not remember whether Ellie was five or ten years old when she told her granddaughter that her conception was abnormal because she was conceived out of rape (see Matter of Louise E.S. v W. Stephen S., 64 NY2d 946, 947 [1985] ["respect is to be accorded the Trial Judge's advantage . . . in observ[ing] the demeanor of the witnesses"]; Eschbach v Eschbach, 56 NY2d 167 [1982]; Matter of Paliani v Selapack, 178 AD3d 1425, 1426 [4th Dept 2017]); see also Matter of Cross v Casewell, 113 AD30 (1107 [4th Dept 2014]).

Evidence

The Court also received into evidence seventy-seven (77) exhibits: Petitioner's Exhibit 1 (Order of Custody and Visitation between Mother and Father, signed by Judge Gallaher on November 12, 2009 under docket number V-xxxxx-08 and V-xxxxx-08); Petitioner's Exhibit 2 (Custody Order among Mother, Father and Maternal Grandparents, entered March 1, 2013, by Judge Gallaher under docket number V-xxxxx-11 and V-xxxxx-08/11C); Petitioner's Exhibit 3 (Photograph of the outside of Father's home); Petitioner's Exhibit 4 (Photograph of the basketball hoop outside of Father's home); Petitioner's Exhibit 5 (Photograph of Father's dining room); Petitioner's Exhibit 6 (Photograph of the foyer and stairs of Father's home); Petitioner's Exhibit 7 [*3](Photograph of the fireplace and furniture in Father's living room); Petitioner's Exhibit 8 (Photograph of a television and furniture in Father's living room); Petitioner's Exhibit 9 (Photograph of the deck and backyard at Father's home); Petitioner's Exhibit 10 (Photograph of the deck, patio set and backyard at Father's home); Petitioner's Exhibit 11 (Photograph of the laundry room and hallway at Father's home); Petitioner's Exhibit 12 (Photograph of the kitchen at Father's home); Petitioner's Exhibit 13 (Photograph of the kitchen table at Father's home); Petitioner's Exhibit 14 (Photograph of Ellie's bed at Father's home); Petitioner's Exhibit 15 (Photograph of television, toys and dresser in Ellie's bedroom at Father's home); Petitioner's Exhibit 16 (Photograph of Ellie's bedroom window and toys at Father's home); Petitioner's Exhibit 17 (Photograph of Ellie in her bed at Father's home); Petitioner's Exhibit 18 (Photograph of Ellie's bathroom at Father's home); Petitioner's Exhibit 19 (Photograph of Ellie's bathroom at Father's home); Petitioner's Exhibit 20 -61, 63, 66 - part E only (various photographs and videos depicting time Father and Ellie spent together), Petitioner's Exhibit 62 (list of 57 exhibits) Petitioner's Exhibit 63 (Photograph of a text message purportedly from Ellie to Mother); Petitioner's Exhibit 67 (Decision and Order of Judge Gallaher entered November 21, 2016), Petitioner's Exhibit 68 (Temporary Order of Judge Vazzana entered October 17, 2018), Petitioner's Exhibit 69 (Curriculum Vitae of Santo W. Bentivegna, Ph.D.), Petitioner's Exhibit 70 (Psychological Assessment Prepared by Santo W. Bentivegna, Ph.D., dated August 3, 2019), Petitioner's Exhibit 71 (text message exchange between Grandfather and Father beginning November 26, 2016), Petitioner's Exhibit 72 (text message exchange between Grandfather and Father beginning March 4, 2018), Petitioner's Exhibit 73 (four-page email from Grandfather to the prior Attorney for Child, dated December 6, 2016 ), Respondent's Exhibit A (Certified criminal history report for Father from the New York Division of Criminal Justice Services, dated August 4, 2015); Respondent's Exhibit B (Certified copy of Father's employment application at Chevrolet dealership dated February 6, 2012); Respondent's Exhibit C (Temporary Order of Protection [stay away] of Charles T. Maloy, Judicial Hearing Officer [JHO], dated December 8, 2008, [Mother is the protected party and Father is the Respondent]); Respondent's Exhibit D (Order of Protection [refrain from] of Charles T. Maloy, JHO, dated January 5, 2009 in effect until January 5, 2010, [Mother is the protected party and Father is the Respondent]) and Respondent's Exhibit E (Order of Protection [stay away] of the Honorable John J. Connell dated March 6, 2009, in effect until May 1, 2018 [Mother is the protected party and Father is the Respondent]).

Brady S

At trial Father was 33 years old (DOB: xx/xx/1986). Father previously was convicted of both the statutory rape of Mother and violating various orders of protection in which Mother was the protected party (see Respondent's Exhibit A [Criminal History of Father]). He served a prison sentence, and the criminal court entered an over nine year stay away order of protection against him in favor of Mother which expired on May 2, 2018 (see Respondent's Exhibit E). Throughout the years, Mother and Father have lived together for short periods of time, always unsuccessfully. They first lived together after Ellie's birth with Grandparents' acquiescence. Most recently, in 2018, after the expiration of the Order of Protection, they vacationed together in Florida. Soon after their vacation they decided to no longer pursue a romantic relationship.

Father wants to raise his daughter. He has maintained full-time employment as a [*4]salesperson for several years at one of the area's largest automobile dealerships. His supervisor at work, Mathew J, testified on his behalf. Father's own testimony evinced that he is no longer the misguided person he was once was and that his life stabilized several years ago after he stopped using illegal drugs. Father testified that he has not disparaged Grandparents or Mother to Ellie and he is willing to support and foster a relationship between Ellie, her Grandparents and Mother. His activities with Ellie include skiing, ice skating, and visiting the zoo, library and museum. Father has a bedroom set up for Ellie in his home; however, Grandparents are fervently opposed to him exercising unsupervised visitation and have denied him overnights.

Grandparents

At trial Grandmother was 60 years old (DOB: xx/xx/1959) and Grandfather was 67 years old (DOB: xx/xx/1951). The mainstay of Grandparents' testimony concerned their mistrust of Father. Grandparents fear Father is grooming and sexualizing Ellie. There is no evidence of the same. Grandfather testified that Father created a dream bedroom for Ellie, gives her presents, takes her places and tells her he loves her, simply to manipulate her. Grandmother testified that Ellie was manipulated by Father promising her things including a cell phone, computer, bedroom, clothing and a trip to Disney. Grandmother too was concerned that Father kissed Ellie's bare belly and gave her, what Father refers to as "dad berries."

Grandparents blame Father for Mother's ongoing struggles with addiction, highlighting how he exposed her to drugs. Grandparents, however, ignore Grandmother's own prior addiction to alcohol and its potential impact on Mother. They endorse and passionately pursue legislative changes intended to terminate the parental rights of any person convicted of statutory rape. Grandparents have spoken with a representative from both Inside Edition and Marie Claire magazine. They testified they have paused their efforts to secure media attention about this case until this Court renders a decision.

Grandfather posited that Father is not a legitimate father, "you don't rape your way into fatherhood, period." Grandmother's testimony included the term rape, "rape conception" or "rape of a minor" at least twenty (20) times. She testified that she "cannot trust Mr. S at all, ever." Grandfather conceded that he and Grandmother never refer to Father as father, only as Mr. S or "B.S." Since Father betrayed their trust with their daughter, Grandparents are adamant that they will not "travel down that road again" with their granddaughter. At odds, Grandfather admitted that when Mother, after Ellie's birth, went to live with Father, Grandfather did nothing and instead waited for the relationship to implode.

Grandparents have compiled a binder over the past twelve (12) years of information, transcripts and orders; anything related to Father, Mother and Ellie's "rape conception." They plan to show Ellie the binder before she turns fourteen (14) years old. The binder, in their view, will help Ellie understand Mother's shortcomings as a parent, arising out of her victimization by an adult sexual predator, specifically Father. Grandfather testified that he hopes that Ellie will grow up and pursue legislative changes to terminate the rights of any father who conceives a child by rape.

Grandfather claimed his views do not arise out of animosity but rather pragmatic concern. Grandparents do not accept Ellie's "rape conception" as normal and they want Ellie to know [*5]"they do not embrace it as a family." Grandfather testified that he explained to Ellie when she was 10 years old, without using the word rape, that when her mother was "a little girl," her father, a grown man, had illegal sexual relations with her [FN2] . Grandfather testified Ellie was surprised when she saw Father's picture on the New York State Sex Offender Registry. He told his granddaughter pictures of persons are on the registry if "they continue to do it."

Grandparents virtually have raised Ellie, although Mother also has lived with them periodically throughout the years. They found daycare for Ellie when they were both working [FN3] and since Grandfather retired he cares for her full-time.

Grandmother has had struggles with alcohol and suffers from depression. She

was separated from Grandfather and lived elsewhere in Rochester from July 2007 to Fall 2009 but participated in Ellie's care. Mother, still a minor, lived with Father during a portion of this time period with Grandparents' acquiescence. Grandmother also admits using corporal punishment on Ellie in the past.

Isabella (Ellie)

The scant testimony centered on Ellie revealed that Grandparents have provided her with a stable home and that she is a strong, intelligent and resilient child. Grandparents facilitate Ellie's participation in both school and extracurricular activities including fiddle club, violin, orchestra, chorus, yearbook club, ice skating, roller skating, drama club and go girl go (running club). They reside within walking distance of Ellie's school where she attends sixth grade. Grandparents and Ellie also participate in a grandparents raising grandchildren group twice a month, Ellie's medical appointments and family counseling.

Dr. Bentivegna's report states "[o]verall, it is clear that Ellie functions cognitively in the gifted or superior range for her age and no signs of any severe or acute cognitive dysfunction have been identified." He further concluded "that she is in need of ongoing individual psychotherapy with regards to the issues related to this dysfunctional dynamic between she and her biological father[,] ... loss in the relationship with her biological mother [and an] impaired relationship with her grandmother" (see Petitioner's Exhibit 70).

Mother

At trial Mother was 28 years old (DOB: xx/xx1991). Mother's role in Ellie's life remains unchanged since the entry of the 2013 Consent Order. Although her attorney was present, Mother missed three days of trial and chose not to testify. She failed to complete her forensic evaluation with Dr. Bentivegna. The testimony of both Grandparents and Father portray Mother as inconsistent in maintaining her sobriety and employment. Mother has lived intermittently with Grandparents and Father, but each have required her to leave their respective homes when she is misusing drugs. Mother has been sporadically absent from Ellie's life since her birth due to Mother's own limitations. The Court recognizes that Mother makes no appreciable decisions regarding Ellie and largely defers to her parents. Nonetheless the Court finds that no party presented evidence of a change of circumstance since the 2013 Consent Order with respect to Mother and accordingly continues her joint custody of Ellie.

[*6]Dr. Bentivegna

Dr. Bentivegna testified that after his forensic evaluation of Father, Grandmother and Grandfather, he found that Grandfather alone lacked a mental health diagnosis. Based upon the data from the Assessment of the Interpersonal Relations Test, Ellie rated her relationship the strongest with Grandfather and the weakest with Father. Ellie did not want to apply the test to her Mother. Ellie, herself, described her contact with her Mother to Dr. Bentivegna as "kind of random."

Upon cross-examination, Dr. Bentivegna conceded that a child can be conflicted about feelings towards a parent out of a sense of loyalty to other adults. When cross-examined as to whether Ellie's loyalty to her grandparents might prevent her from giving a positive description of her relationship with her Father, Dr. Bentivegna was equivocal. Dr. Bentivegna testified that Ellie did reveal that her Grandparents both told her that her Father is "a liar, and he is good at it...[and] what [he did] to [her] mom."

Legal Standard

Father's Lack of Access to Ellie

Under the 2013 Consent Order, Grandparents supervised Father's visitation. Grandmother testified that Ellie was engaging with Father and seemed to be happy to be with him during supervised visits, which generally were spent at a local library. Grandmother did recount an incident of grave concern to her: She lost sight of Ellie during a supervised visit and discovered Father and Ellie outside in front of the library blowing bubbles.

Grandparents allowed Father to participate in Ellie's first day of kindergarten and her birthday party at school that year; however, trouble arose when unsupervised visits were to begin after December 1, 2013. Grandmother testified this was a "momentous day in her life," as she did not want "Mr. S intruding into [their] lives." Beyond the requirements of the 2013 Consent Order, Grandparents compiled a set of guidelines that included: Father advising them where each visit would occur, limiting the time for each visit; and how far from their home Father could travel with Ellie. Grandparents unilaterally declared that Father's time with Ellie would expand gradually as they determined. Father at first complied with Grandparents' rules, but eventually stopped telling them about the details of his unsupervised visits with Ellie. Grandparents' and Father's relationship soured. Grandparents then bought Ellie a watch with a Global Positioning System (GPS) tracking device. After the watch fell off during a visit, Grandparents secured it with a string so they might know if it was removed from her wrist. Judge Romeo ordered the watch removed.

Change of Circumstances

"Although an existing order of custody and visitation that is based on the consent of the parties is entitled to less weight than a disposition after a plenary trial, [a] court may not modify such an order unless a sufficient change in circumstances since the time of the consent order has been established, and then only where a modification would be in the best interests of the child" (Matter of DeJesus v Gonzalez, 136 AD3d 1358, 1359 [4th Dept 2016]), lv denied 27 NY3d 906 [2016] [internal quotation marks omitted]). The Appellate Division, Fourth Department, remitted Father's petition to family court for a best interests hearing having found that Grandparents proved extraordinary circumstances. Grandparents argue nothing has changed for [*7]Father because he had a stable job and suitable living quarters at the entry of the 2013 Consent Order. The Appellate Division found Father need not establish the requisite change of circumstances here. Regardless this Court finds a change in circumstances undeniably exists due to the Grandparents' lengthy campaign to withhold expansion of Father's visits and to alienate Ellie's affections for him. In contrast, Grandparents' petition for sole custody is a regurgitation of their grievances with Father and, thus, the Court hereby denies their petition.

Best interests

Factors courts have carved out to ascertain the best interests of a child, include (1) the quality of the child's home environment and that of the parent seeking custody; (2) the ability of each party to provide for the child's emotional and intellectual development; (3) the financial status and ability of each party to provide for the child; (4) the individual needs and expressed desires of the child as well as the need for a child to live with siblings; and (5) the continuity and stability of the existing custodial arrangement, including the relative fitness of the parents/grandparents and the length of time the present custodial arrangement has continued (Fox v Fox, 177 AD2d 209, 210 [4th Dept 1992]; see also Eschbach v Eschbach, 56 NY2d 167, 172-173 [1982]). Further in determining the best interests of a child, a court must consider any "abduction, elopement or defiance of the legal process" (Robert T.F. v Rosemary F., 148 AD2d 449 [2d Dept 1989] citing Friederwitzer v Friederwitzer, 55 NY2d 89, 94 [1982]) as well as the effects of domestic violence (Hendrickson v Hendrickson, 147 AD3d 1522 [4th Dept 2017].

The Court must evaluate the totality of the circumstances, no one factor is determinative (Matter of Cross v Casewell, 113 AD3d 1107 [4th Dept 2014]). Great deference is accorded to the determination of the trial court and will not be disturbed where it is supported by a sound and substantial basis in the record (see Matter of Aronica v Aronica, 151 AD3d 1605 [4th Dept 2017]). The Court has considered each of these factors in evaluating what custodial arrangement is in Ellie's best interests.

(1)The quality of the child's home environment and that of the parent seeking custody. Grandparents have remained in the same home for Ellie's entire life. Father owns his residence which is an appropriate home environment for Ellie. Mother sporadically lives with Grandparents providing a more consistent relationship between Ellie and her.

(2)The ability of each party to provide for the child's emotional and intellectual development. Grandparents seem committed to stunting Ellie's emotional development. They have focused perpetually on Father's prior convictions, treating "B.S." with great disdain. Grandmother testified that she faced and overcame a problem with alcohol, yet she is unwilling to allow Father to demonstrate that he has surmounted his own addictions. Instead Grandmother has an unbending resolve to eliminate Father from Ellie's life.

On cross-examination, Grandfather was asked if Ellie would benefit from having Father in her life as opposed to not at all. He answered, "[s]he has a father. She has a family. No, I think he should be out of her life completely, but it's not in my control." Above all, Grandparents' hold fast to the notion that Ellie's conception is her real story and her legacy. Grandparents do not have to forgive Father, nor allow him to redeem himself in their eyes, but their misguided belief that Ellie is defined by her conception is damaging to her.

Father has not undertaken the day-to-day responsibilities of raising Ellie, however, he has shown himself to be dependable while exercising visitation. Mother, when clean and sober can [*8]strive to secure an enduring relationship with Ellie.

(3)The financial status and ability of each party to provide for the child. Both Grandparents and Father are financially stable and able to provide for Ellie. Mother to date has not been asked by any party to shoulder financial obligations for Ellie.

(4) The individual needs and expressed desires of the child as well as the need for the child to live with siblings. Ellie does not have siblings. Through the strong advocacy of her attorney Ellie consistently has made her position clear: she supports her Grandparents' petition and she is not seeking a change in residence.

(5)The continuity and stability of the existing custodial arrangement, including the relative fitness of the parents/grandparents and the length of time the present custodial arrangement has continued. Grandparents have provided Ellie with a stable and secure home for almost her entire life. Still Father filed his Amended Petition (which was remitted for a hearing) back in 2015 when Ellie was just seven years old. Father should not be penalized due to prolonged litigation (see Matter of Alfredo S. v Nassau County Dept. of Social Servs., 172 AD2d 528, 530 [2d Dept 1991], appeal denied 78 NY2d 899 [1991]).

Further this Court considered carefully the fitness of Grandparents and is aware that "a concerted effort by one [party] to interfere with the other [party's] contact is so inimical to the best interests of the child . . . as to, per se, raise a strong probability that [the interfering party] is unfit to act as custodial [party]" (Matter of Cramer v Cramer, 143 AD3d 1264 [4th Dept 2016], lv denied 28 NY3d 913 [2017]). The Court has weighed Grandparents' hostility to Father, but after balancing all factors cannot find them "unfit" to act as joint custodians, exercising designated zones of influence.

Grandparents improperly denied visits with Father for a certain time. Only after court intervention did his visits resume and Grandparents made up Father's visits. Grandparents' consistently have rebuffed Father's attempts to parent. Nonetheless photographs received into evidence, and Father's own testimony, reflect a positive relationship between Ellie and him.

Father who was not "fit" at Ellie's birth has improved his circumstances by achieving a stable life with full-time employment and a home, which includes a bedroom for Ellie. Father exercises every opportunity to spend time with Ellie. The Court further credits Father's testimony that he has not disparaged Grandparents or Mother to Ellie, and is willing to foster Ellie's relationships with them.

Mother maintains a nontraditional relationship with Ellie. She is not now, nor ever has been, Ellie's primary caregiver.

(6)In determining the best interests of a child, a court must consider any abduction, elopement or defiance of the legal process as well as the effects of domestic violence. Both Grandparents and Father have not complied with court orders. Father has violated orders of protection both in criminal and family court with Mother as the protected party. Grandparents have violated orders thwarting the visitation plan of family court. When factoring only domestic violence as between Grandparents and Father the scale tips in Grandparents favor, even though Mother, not Ellie, was the protected party of the orders that Father violated.

The Attorney for the Child

Essentially Ellie has been in the sole care and custody of Grandparents for her entire life and, according to her attorney, that is fine with Ellie (see Matter of McDermott v Bale, 94 AD3d [*9]1542, 1543 [4th Dept 2012], quoting Family Court Act § 241 [the purpose of an attorney for the children is "to help protect their interests and to help them express their wishes to the court"]). Although a child's wishes are not determinative (see Matter of Anthony C. v Kristine Z., 38 AD3d 1317 [4th Dept 2007];Matter of Casolari v Zambuto, 1 AD3d 1031 [4th Dept 2003]; Matter of Hughes v Wiegman, 150 AD2d 449, 450 [2d Dept 1989]); "they are entitled to great weight, particularly where [the child's] age and maturity would make [his] input particularly meaningful" (Matter of Stevenson v Stevenson, 70 AD3d 1515 [4th Dept 2010], lv denied 14 NY3d 712 [2010] but cf Braga v Bell, 151 AD3d 1924 [4th Dept 2017]).

Ellie is now 12 years old and the Court has considered what the Attorney for the Child has advocated on her behalf, given her age and maturity. A provision allowing a child to decide when he sees a parent "tends unnecessarily to defeat the right of visitation" (Casdari, 1 AD3d at 1031 [citations omitted]), thus "the wishes of [a child] with respect to contact with [a parent] is not controlling" (Anthony C. 38 AD3d at 1318). Unfortunately, a scheduled in camera with Ellie was postponed due to a snowstorm and then again due to COVID restrictions that limit access to the Hall of Justice [FN4] . The Court, thus, did not hold a Lincoln proceeding (see Lincoln v Lincoln, 24 NY2d 270 [1969]; Family Court Act § 664).

Conclusions of Law

Based on the totality of the evidence, the best interests of Ellie warrant that Father, Grandparents and Mother shall enjoy joint custody with designated zones of influence. Grandparents and Father shall share equal physical residency, with Mother having scheduled parenting time.

A child's best interests are protected best by allowing the development of the fullest possible healthy relationship with both parents, or here, with both parents and Grandparents (see Nimkoff v Nimkoff, 18 AD3d 344 [1st Dept 2005] [Family Court erred in not beginning overnight visitation between father and the children where so recommended by a court-appointed forensic psychologist and by instead focusing on father's demeanor in the courtroom]). While it would not be in Ellie's best interest to uproot her entirely from her Grandparents' home, such shared arrangement will strengthen her relationship with Father, without Grandparents' persistent interference.

Grandparents and Father do not communicate with each other. When traditional joint custody - and thus joint decision making with respect to a child - is not possible because of the antagonistic relationship between the parties (see Bliss v Ach, 56 NY2d 995, 998 [1982]; Matter of Brown v Marr, 23 AD3d 1029, 1030 [4th Dept 2005]), it may be appropriate to grant "zones" or "spheres" of decision-making authority to the parties (Delgado v Frias, 97 AD3d 1245 [4th Dept 2012]; Wideman v Wideman, 38 AD3d 1318 [4th Dept 2007]; see also Matter of Ring v Ring, 15 AD3d 406 [2d Dept 2005] [affirming an order granting mother ultimate decision making authority over the child's education and religious issues and father decision making authority over the child's medical and financial issues]; Chamberlain v Chamberlain, 24 AD3d 589 [2d Dept 2005], citing Matter of Penninipede v Penninipede, 6 AD3d 445 [2d Dept 2004] [*10][Father awarded joint decision making rights and responsibilities with respect to all health-related decisions involving his daughter]. Even an antagonistic relationship between the parties, without more, does not preclude an award of shared physical custody (see Delgado, 92 AD3d at 1245; see Steingart v Fong, 156 AD3d 794 [2d Dept 2017][awards of shared physical custody with parties given separate decision making authority]).

Grandparents testified in greater detail about Ellie's medical needs. They have attended the same family physician for years, and facilitated her medical and counseling appointments to date. The Court finds that Grandparents are more adept at being the final decision maker regarding Ellie's medical and, or counseling needs. The Court also grants them decision-making regarding Ellie's faith-based practices or religion.

Father, finally given authority to act as a parent, may make decisions regarding Ellie's ever-changing educational needs and extracurricular activities as she attends middle and high school. For stability, Ellie will continue to attend school in her current school district for her primary and secondary education.

THE COURT HAVING SEARCHED THE STATEWIDE REGISTRY OF ORDERS OF PROTECTION, THE SEX OFFENDER REGISTRY AND THE FAMILY COURT CHILD PROTECTIVE RECORDS, AND HAVING NOTIFIED THE PARTIES AND THE ATTORNEYS OF THE RESULTS OF THESE SEARCHES AND THE COURT HAVING CONSIDERED AND RELIED UPON THE SAME:

NOW, THEREFORE, it is

ORDERED that Grandparents' petition for sole custody is denied; and it is further

ORDERED that the Court finds both a change in circumstances exist and it is in the best interests of Isabella S a/k/a Ellie S (DOB: xx/xx/2008) that Grandparents, Mother and Father shall share joint custody of Ellie with designated zones of influence; and it is further

ORDERED that Grandparents' zones of influence shall be medical and, or counseling decisions as well as faith-based practices and, or religious decisions regarding Ellie; and it is further

ORDERED that Father's zones of influence shall be all educational decisions and those related to extracurricular activities; and it is further

ORDERED that Ellie shall continue to attend her school in her current school district for her primary and secondary education; and it is further

ORDERED that no party shall show Ellie the "binder" nor shall they discuss the details of her conception while she remains a minor; and it is further

ORDERED that from the date of this Order until March 1, 2021, Father shall have periods of residency on alternate weekends from Friday at 6:00 p.m. to Sunday at 6:00 p.m. (commencing on December 18, 2020); and it is further

ORDERED that after March 1, 2021 residency between Grandparents and Father shall be shared, equal, 50/50, and Ellie shall alternate residency each week between

Grandparents and Father with exchanges to occur Friday after school (first period of residency shall be with Father starting on Friday, March 5, 2021); and it is further

ORDERED that Mother shall enjoy parenting time on alternate Saturdays from 10:00 a.m until 6:00 p.m. with other and further parenting time at the discretion of the Grandparents (all to [*11]occur exclusively during Grandparents periods of residency); and it is further

ORDERED that the following Holiday/Special Day Residency Schedules shall supersede the regular residency schedule (with the exception of Mother's alternate Saturday visits which shall continue unabated unless it falls on Christmas Eve, or Christmas Day, in which case Mother's Saturday parenting time shall be 10:00 a.m. until 1:00 p.m.); and it is further

ORDERED that Grandparents shall have the following Holiday/Special Day Residency Schedule:

Christmas Eve from noon until Christmas Day at 1:00 p.m. during odd years;

Christmas Day from 1:00 p.m. until December 27th at 7:00 p.m. during even years;

New Year's Eve from noon until New Year's Day at noon during even years;

New Year's Day from noon until January 2nd at 7:00 p.m during odd years;

Easter Saturday at noon until Easter Sunday at 6:00 p.m. during even years;

Easter Sunday at 6:00 p.m. until Easter Monday at 7:00 p.m. during odd years;

The Wednesday before Thanksgiving from noon until Thanksgiving Day at 6:00 p.m. during even years;

Thanksgiving from 6:00 p.m. until the day after Thanksgiving at 7:00 p.m. during odd years;

Grandparents shall enjoy the Spring break from school with Ellie each year (uninterrupted by and to supercede Mother's alternate Saturday visit; but not to supercede Father's exercise of Easter Sunday and, or Monday); and it is further

ORDERED that Father shall have the following Holiday/Special Day Residency Schedule:

Christmas Eve from noon until Christmas Day at 1:00 p.m. during even years;

Christmas Day from 1:00 p.m. until December 27th at 7:00 p.m. during odd years;

New Year's Eve from noon until New Year's Day at noon during odd years;

New Year's Day from noon until January 2nd at 7:00 p.m during even years;

Easter Saturday at noon until Easter Sunday at 6:00 p.m. during odd years;

Easter Sunday at 6:00 p.m. until Easter Monday at 7:00 p.m. during even years;

The Wednesday before Thanksgiving from noon until Thanksgiving Day at 6:00 p.m. during odd years;

Thanksgiving from 6:00 p.m. until the day after Thanksgiving at 7:00 p.m. during even years;

Father shall enjoy the Winter (and, or February) break from school with Ellie each year (uninterrupted by and to supercede Mother's alternate Saturday visits); and it is further

ORDERED, that Grandparents, Mother and Father shall always be able to spend a minimum of two hours with Ellie on their respective birthdays; and it is further

ORDERED that Mother shall be able to spend a minimum of four hours with Ellie on Mother's Day; and it is further

ORDERED that Father shall be able to spend a minimum of four hours with Ellie on Father's Day; and it is further

ORDERED that no party shall be under the influence of illegal drugs or excessive alcohol while in the presence of the child; and it is further

ORDERED that no party shall use corporal punishment on Ellie, nor shall they allow any [*12]third party to use corporal punishment upon her; and it is further

ORDERED that neither Grandparents, Mother nor Father shall speak disparagingly about another party in the presence of the child; and it is further

ORDERED that Grandparents, Mother and Father shall be entitled to complete, detailed information from any physician, pediatrician, dentist, consultant or specialist attending Ellie for any reason whatsoever and to be furnished with copies of any reports given by the latter to any parent or grandparent. No party shall take any action which would prohibit free access by the other to any and all records relating to Ellie, whether they are medical, dental, school or otherwise. Each party shall be entitled to complete, detailed information from any school or teacher giving instruction to Ellie or at which Ellie may attend and to be furnished with copies of all reports rendered by any of the aforesaid. Copies of medical or specialist' reports requested by a party shall be obtained by that party at his/her own expense. Each party shall be under an affirmative duty to forthwith notify and inform the other(s) of the complete full name, address and telephone number of any such person, unit, organization, institution or entity providing care or treatment to Ellie; and it is further

ORDERED that Grandparents, Mother and Father shall have the right to communicate with Ellie by telephone, text, Skype or Facetime or such similar application, at reasonable times and for reasonable period of time, and the parent/grandparent having Ellie shall not interfere with that communication. That Ellie shall always be allowed to communicate with either parent or grandparent by telephone, text, Skype or Facetime or such similar application, at any time; and it is further

ORDERED that Grandparents, Mother and Father shall have the right to be present at any event in which Ellie participates, including extracurricular activities, school events, plays, athletic events, and any other event that is generally recognized by the parents, grandparents or Ellie to be important; and it is further

ORDERED that Grandparents, Mother and Father shall continue with family counseling as directed by the counselor; and it is further

ORDERED that neither Grandparents, Mother nor Father shall permanently relocate Ellie outside of Monroe County without the expressed written, notarized

consent of the other parties, and, or an order of a Court of competent jurisdiction; and it is further

ORDERED that each parent and grandparent shall abide by the following Children's Bill of Rights:

[1] The right not to be asked to choose sides between their parents and/or grandparents.

[2] The right not to be told of the legal proceedings between the parties.

[3] The right not to be told bad things about the other parties' personality or character.

[4] The right to privacy when talking to either parent and/or grandparent on the telephone;

[5] The right not to be cross examined by one parent and/or grandparent after spending time with the other party.

[6] The right not to be asked to be a messenger from one party to the other party.

[7] The right not to be asked by one party to tell the other party untruths.

[8] The right not to be used as a confidant regarding adult matters.

[9] The right to express feelings, whatever those feelings may be.

[10] The right to choose not to express certain feelings.

[11] The right to be protected from parental/grandparent warfare.

[12] The right not to be made to feel guilty from loving both parents and grandparents; and it is further

ORDERED that should the Court find Father or Grandparents have willfully disobeyed this Order, it shall constitute a change of circumstances for the other party to make application for sole custody and/or primary physical residency; and it is further

ORDERED that this Order shall supersede all prior orders of custody and visitation.

Dated this _______ day of ______________, 2020 at Rochester, New York.

___________________________________

HON. DANDREA L. RUHLMANN

FAMILY COURT JUDGE

PURSUANT TO § 1113 OF THE FAMILY COURT ACT, AN APPEAL MUST BE TAKEN WITHIN THIRTY DAYS OF THE RECEIPT OF THE ORDER BY 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 ATTORNEY FOR THE CHILDREN UPON THE APPELLANT, WHICHEVER IS EARLIEST. Footnotes

Footnote 1:Licensed psychologist, clinical psychologist in New York State.

Footnote 2:Father's conviction for statutory rape arose out of acts when Mother was age 15 and Father was age 21.

Footnote 3:Grandmother still works.

Footnote 4:President Donald J. Trump signed an emergency declaration in response to the coronavirus pandemic on March 13, 2020; New York State Governor Andrew M. Cuomo declared a state of emergency on March 14, 2020, as did Monroe County Executive Adam Bello.