Matter of Maherly M. v Kaleb G.

[*1] Matter of Maherly M. v Kaleb G. 2021 NY Slip Op 51314(U) Decided on November 10, 2021 Family Court, Bronx County Perry, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 10, 2021
Family Court, Bronx County

In the Matter of a Guardianship Proceeding Maherly M., Petitioner,

against

Kaleb G., Respondent.



File No. 168190


Gretchen Beall Schumann, Esq., Rabin Schumann and Partners, New York City, for Petitioner

Elizabeth Posse, Esq., Bronx, for Respondent Kaleb G

Joseph V. Moliterno, AFC, Bronx, for the subject Child Phaedra Perry, J.

Background Information and Procedural History

This matter comes before the court upon the petition for guardianship filed by Maherly M. (hereinafter, the "Petitioner"), Petitioner is the sister of the deceased Linda M and the children's aunt. She petitioned the court on June 19, 2019, for guardianship of Linda M's three surviving children all of whom have different fathers; now 10-year-old SG (dob XX/XX/11), now 16-year-old ER (dob XX/XX/05), and now 18-year-old JM (dob XX/XX/03), after Linda M and her 11-year-old daughter HR were murdered by her boyfriend, on June 15, 2019. The children were at the scene of the homicide and were immediately taken in by the Petitioner.

The petition for the child JM was settled on consent. On June 20, 2019, Robert R, the father of ER and ex-husband of Linda M, filed a petition for modification of an order of custody made by supreme court. On June 24, 2019, Kaleb G, the father of SG filed a petition for custody and visitation while he was incarcerated awaiting his release in August 2019. Once Kaleb G was released he appeared in court and thereafter, an extraordinary circumstances hearing was held over five days. On February 17, 2021, this court found the existence of extraordinary circumstances, which warranted a trial on the issue of the best interests of the children ER and SG. The best interest hearing was held over the course of five days on April 30, May 25, June 17, June 29, and July 26, 2021. The court also conducted a Lincoln hearing of the child SG at the conclusion of the best interest hearing.[FN1] The parties submitted written summations on September 3, 2021.

In late September 2021, the parties requested a court conference to address new developments regarding ER and SG, and the Petitioner further requested that the record be re-opened to submit limited information regarding SG. On October 1, 2021, the court held an attorney only conference and was advised that ER decided to live with his father in South Carolina. At that same conference, Petitioner withdrew, without prejudice, the petition for guardianship of ER. As such, the petition for modification by Robert R is moot. The court denied Petitioner's application to re-open the record.

What remains before this court is Petitioner's guardianship petition for SG only, which Kaleb G opposes, as well as Kaleb G's custody and visitation petition for SG.

Testimony of Petitioner

Petitioner testified she is the sister of the children's deceased mother Linda M. Petitioner has been employed as a legal assistant for 28 years, earning approximately $91,000 annually. She lives in a two-bedroom apartment in the Bronx, with her 48-year-old son who occupies one of the two bedrooms. Petitioner testified that SG and JM sleep in her room along with the Petitioner. The apartment is approximately 20 minutes from SG's father's apartment.

Petitioner testified that she had never met or had a conversation with Kaleb G before these proceedings. Kaleb G was incarcerated when SG was born, and he did not have a relationship with SG until after he was released in August 2019. At that time, he was given supervised visits with SG. Initially, SG was apprehensive but willing to have day visits with her father and his new family, which consisted of his wife and her two children.

She testified that since Linda M's untimely death she has been the primary caretaker of SG. She testified that SG has been attending therapy sessions since the death of her mother and sister. She stated that pre Covid-19, she would accompany SG to her therapy sessions, converse with the therapist afterwards, and schedule and accompany SG to medical and dental appointments. She speaks with SG's teachers and makes sure SG gets any additional tutoring she may need. During testimony, Petitioner admitted that she did not personally notify Kaleb G of the therapy sessions or any of SG's school activities.

Petitioner testified that SG has two godmothers that she is very close with, one of whom lives in Pennsylvania. Petitioner allows SG to make plans to visit with her godmother in Pennsylvania. Petitioner testified that she has always accommodated Kaleb G's request for additional time with SG. Petitioner stated that she is aware that SG wants to live with her father. However, Petitioner testified that she has concerns with the supervision SG receives while with her father. She stated that SG sleeps in a room with boys. Petitioner testified about several incidents involving Kaleb G's temper and his fitness to care for SG. She testified, in one incident, SG told Petitioner that her father told her he would slap the "shit" out of her. Petitioner testified that she confronted Kaleb G outside her residence while he was picking up SG for his visit with her. Petitioner stated that she asked SG to stay over by the basement door while she spoke with Kaleb G and that the conversation escalated into a heated argument. She stated that she instructed SG to remain by the basement so that she would not hear the conversation. Petitioner testified as follows:

Q. And what did you say to him, and what did he say to you?A. Well, we were talking about it, and I asked [SG] to stay over by the basement while [*2]we were talking about it. And I told him, I didn't want anything like that to ever happen again; not to ever threaten her or make her feel uncomfortable. Because the manner in which it was done was really horrific. He cleared the room of his wife and her two kids, and he kept [SG] in the room with him, and cornered her, and told her, don't you be disrespectful in my house. If you do, I'm going to slap the whatever out of you.(April 30, 2021 Trial Transcript, 50:19-51:4).

Petitioner testified that she wants to keep guardianship of SG because she would like to keep the children together as a family. Petitioner would also like for SG to have a flourishing relationship with her father; however, Petitioner is fearful of a situation where she or the people that have supported SG and her siblings, would have difficulty seeing SG. Petitioner also testified that she is afraid that if SG went to live with her father, he would not allow SG to visit with the Petitioner.

Testimony of Kaleb G

Kaleb G testified that he and Linda R were high school sweethearts and dated off and on throughout the years. He knew the oldest child JM when she was a baby and he and Linda were living together.

Kaleb G testified that he was incarcerated when SG was born. He testified that initially, he and Linda M kept in contact but at some point, once she began a relationship with another man, she stopped all contact with him. He was released in August of 2019 for good behavior and extenuating circumstances. He testified that prior to leaving prison, he filed two applications in court regarding access to SG.

Kaleb G testified that he is employed part-time earning approximately $30,000 annually and resides with this wife Melinda G, her son, and his son from a previous relationship. He lives in a two-bedroom apartment in the Bronx. When SG stays with him, she sleeps in a bed in the living room and sometimes sleeps with his wife Melinda G while Kaleb G will sleep in the living room.

In August 2020, Kaleb G testified that he had a birthday party for SG in a park and invited Petitioner, SG's siblings, godmother, her maternal family and anyone else SG wanted to attend. Five photographs from SG's birthday party were submitted as Respondent's Exhibit C. He testified he would like to plan events for SG and her siblings to attend with his family.

Kaleb G testified that SG usually indicated during their visits that she wanted to stay longer, she would get emotional, and she would cry because she didn't want to go home. Also, SG would be crying to be picked up for a visit on Friday. He testified that SG also sent him the text messages where she expressed wanting to stay home with him longer.

Kaleb G introduced Respondent's Exhibit B, a video taken by him, purporting to show the confrontation between he and Petitioner, over the slapping comment testified to by the Petitioner. He testified that there was no confrontation as Petitioner addressed him about the incident:

Q. Do you recall in the video clip [Petitioner] is telling you that no one threatened you?A. I believe her testimony from the beginning was to address me about having spoken to my daughter or doing something. That was the exchange from the beginning. There was [*3]no me saying [sic] to no response. It was her addressing [sic] about speaking to my daughter. (July 26, 2021 Trial Transcript, 70:10-18).

Testimony of Melinda G

Melinda G is Kaleb G's wife and provided testimony on his behalf. Melinda G testified that she and Kaleb G live with his 12-year-old son (from a different relationship) and her 12-year-old son (from a different relationship). Melinda G testified that she has an older son who is away at college. She testified that she holds a master's degree in social work and is employed as a social worker at the Department of Health earning approximately $70,000 annually. Through her employment, she provides mental health services for families within the Department of Education. She is also a therapeutic visitation coach, supervising visits between parents and their children, as well as a facilitator for groups of children who have been impacted by trauma.

She testified that since SG has been coming to their home, there has been a significant change in her behavior. Initially, SG did not want to stay in their home, was uncomfortable around her father, did not engage in conversation and requested to be taken home. She testified that now, SG cries when it is time for her to return to Petitioner's home and is around her father constantly. She testified that SG's siblings and the Petitioner are welcome in their home at any time. In fact, Melinda G testified that it is critical for SG to maintain a relationship with Petitioner and her siblings. She also testified that SG's school is two blocks away from their home and the church that SG attends is ten minutes away from her home with Kaleb G.

On cross examination, Melinda G testified that she was introduced to Kaleb G in 2016 through a mutual friend while he was incarcerated. While he was incarcerated, they married in February 2017. She testified that when SG comes over on the weekends, she normally sleeps in the bed in the living room. SG will sometimes ask to sleep in the bed with Melinda G and Kaleb G will sleep in the living room. Melinda G and Kaleb G are looking to move to a bigger apartment.

Melinda G testified that she enjoys spending time with SG in her home. Melinda G testified that SG shares a lot with her, SG expresses how she feels about her. Likewise, Melinda G expresses to SG how she feels about her, and they have a great bond. She also testified that SG has a very close relationship with her half sibling and with Melinda G's 12-year-old son.

Legal Analysis

"It is axiomatic that in considering issues of child custody, a court must determine what is in the best interests of the child, and what will promote the child's welfare and happiness" (Matter of James Joseph M. v Rosana R., 32 AD3d 725, 726, 821 NYS2d 168 [1st Dept 2006], lv denied 7 NY3d 717, 860 NE2d 990, 827 NYS2d 688 [2006]). Factors to be considered include "the existing custody arrangement, the current home environment, the financial status of the parties, the ability of each parent to provide for the child's emotional and intellectual development and the wishes of the child" (Matter of Marino v Marino, 90 AD3d 1694, 1695, 935 NYS2d 818 [4th Dept 2011]; see also Eschbach v Eschbach, 56 NY2d 167, 171, 436 NE2d 1260, 451 NYS2d 658 [1982]). The court is obligated to examine the totality of circumstances, and "the existence or absence of any one factor cannot be determinative" (Eschbach, 56 NY2d at [*4]174). However, although "the express wishes of [the] child are not controlling, they are entitled to great weight, particularly where [the child's] age and maturity would make [his or her] input particularly meaningful" (Matter of Stevenson v Stevenson, 70 AD3d 1515, 1516, 894 NYS2d 696 [4th Dept 2010] [internal quotation marks omitted], lv denied 14 NY3d 712, 929 NE2d 1006, 903 NYS2d 771 [2010]). Melissa C. D. v. Rene I. D., 117 AD3d 407, 407-408, 985 N.Y.S.2d 28, 31, 2014 NY App. Div. LEXIS 2916, *2-3, 2014 NY Slip Op 3010, 1-2, 2014 WL 1699092.

Findings of Fact

Both Petitioner and Kaleb G presented credibly with equal strengths and weaknesses. While the Petitioner testified credibly, at times the Petitioner was defensive, antagonistic, talked over objections and made facial gestures and snide remarks. The court reminded Petitioner on several occasions to refrain from making facial gestures when being asked questions by opposing counsel or while Kaleb G was testifying. Similarly, Kaleb G had several outbursts while being questioned, became visibly angry, and expressed frustration at the custody process. It was clear to this court that there was a palpable animosity between Petitioner and Kaleb G. It was of particular concern to the court given that Petitioner and Kaleb G had never met or had a conversation before these proceedings.

Initially, the court granted Kaleb G supervised day visits through Safe Horizon that increased gradually thereafter to include five hours on Sundays. In the fall of 2019, the visits included Tuesday afternoons, with pick-up from school and drop-off. The Tuesday visits were later eliminated due to Kaleb G's work schedule and after September 14, 2020, the court granted Kaleb G the first three weekends of every month as well as holiday time and school breaks.

The Petitioner testified that she wanted to keep guardianship of SG and for SG to continue to have a flourishing relationship with her father. Petitioner further testified that she was prepared to encourage a relationship between SG and her father. On the contrary, Petitioner demonstrated instances where she was not as prepared as she testified. For example, around the holidays in December 2019, Kaleb G was granted court ordered visitation. Petitioner, however, allowed SG and her siblings to visit with her godmother in Pennsylvania, while the Petitioner remained in New York, even though Kaleb G had a court order granting him parenting time with SG. Petitioner testified that SG wanted to go to Pennsylvania and that she wanted to make her happy. Petitioner testified that Kaleb G knew about the trip and agreed to allow SG to visit. As proof, Petitioner referenced text messages from Kaleb G to SG, as proof that he agreed (Pet Exhibit 8). It should be noted that these text messages were sent by SG (eight years old at that time) the day before she was to visit with her father. Kaleb G testified that although he texted SG to have a good time and that he will see her when she gets back, he did not agree with her going. Petitioner did not reach out to Kaleb G to discuss the matter. He further testified that Petitioner did not always tell him when SG went out-of-state- to visit her godmother in Pennsylvania.

In another incident, one that Petitioner used as an example to show Kaleb G's unfitness, Petitioner complained that SG was not properly dressed for a church memorial service to honor Linda R and HR. However, Petitioner admitted during testimony that she did not inform Kaleb G it was a special service to honor Linda R and HR, nor did she invite him to attend. Kaleb G testified that because SG did not like to wear dresses or skits, and preferred to be in jeans, he allowed her to wear jeans. Kaleb G testified that had he known about the memorial, he would [*5]have dressed SG accordingly. To this point, Kaleb G testified that Petitioner requested he return SG to her home on Saturday at 6pm so the family could attend church services together as a family, even though his visitation with SG was not scheduled to end until Sunday 7pm. Kaleb G admitted he initially agreed to return SG early but changed his mind and offered to bring SG to church on Sunday morning. Petitioner did not agree with his decision and the result was a text message exchange between the parties. Of note, was Petitioner's statement of attending church services together "as a family" without regarding Kaleb G, SG's father as family, or inviting him to attend the service.

In March 2020 during the onset of Covid-19, Petitioner unilaterally decided against allowing Kaleb G to have visits with SG despite this court's order granting him visitation. Indeed, he was not able to resume his visitation until May 2020, when the parties returned to court. Petitioner testified that Kaleb G agreed but did not present any text messages or evidence to that extent.

With respect to Respondent's Exhibit B, the video purporting to show the confrontation between Petitioner and Kaleb G, over the slapping comment made by Kaleb G to SG, both parties seem to think the video reflects poorly on the other. However, what this court saw were two adults arguing in front of a young girl who recently lost her mother and her sister. There was testimony that SG was far enough away, that she did not hear the arguing, however, it was clear in the video she was not. A child who has suffered such tragedy in her young life should not have to watch two of the most important people in her life argue over things that could and should be worked out between adults and not in front of a child. The parties do not have to love or even like each other, but they must work at fostering a cordial, at best, relationship for the sake of SG. Understandably, both parties love and care for SG and want her to be a part of their lives, but that cannot be achieved at the expense of SG.

Petitioner testified that she wanted SG to have a flourishing relationship with her father, however, she testified that she did not personally notify Kaleb G of SG's therapy sessions and never notified him about any activities at SG's school nor did she share her concerns about the sleeping arrangements at his home. In addition, Petitioner allows SG to make plans to visit her godmother in Pennsylvania, while Kaleb G, the biological father, was not afforded that same courtesy by the Petitioner. Petitioner testified that she wants to retain guardianship of SG and was concerned that she or all the people who have supported SG would not see SG anymore or have difficulty seeing her. However, it seems like Petitioner, whether inadvertently or purposefully, did to Kaleb G, what she thought he would do to her regarding SG.

Notwithstanding, it appears that the child has adjusted well to her father, and she appears to have a great relationship with him, his wife and the children. Melinda G testified SG has a very close relationship to her youngest son as well to Kaleb G's son. All the children have a close relationship with one another. She stated that she embraces SG as if she were her own and that she wanted SG to live with them. Melinda G testified that SG will sometimes sleep with her, and Kaleb G will sleep on the couch. Both Melinda G and Kaleb G testified to text messages with SG professing her affection, love, and desire to want to live with her father.

There is also no question that SG has a close relationship with her two siblings JM and ER. There is no evidence and reason to believe that Kaleb G will not allow SG to spend substantial time with JM and ER. Melinda G and Kaleb G testified that SG's siblings are always welcomed in their home. Petitioner's main argument for guardianship, that she wants to keep the children together, is now moot, as the petition for guardianship for ER was withdrawn by the [*6]Petitioner and the child now lives with his father in South Carolina, and JM is 18 years old now.

The court credits the testimony of Melinda G, the wife of Kaleb G, as she credibly testified that she loves SG and would like her to live with them. The court also notes that the school and church that SG attends are all within minutes of Kaleb G's home and their home is about 20 minutes from Petitioner's residence. While it is true that Kaleb G was incarcerated for most of SG's life and had no contact with her prior to these proceeding, it is undeniable that Kaleb G's relationship with SG has grown to the point that she now wishes to live with him. Even Petitioner testified that SG looks forward to her visits with her father. She further testified that SG goes and has a good time, and that SG talks about having fun during her visits with Kaleb G.

As this court noted, the parties do not communicate well with each other. Kaleb G testified that the parties do not speak to each other and communicate almost entirely through text messaging. This court notes that many of their issues stem from a breakdown in communication, their negative feelings towards each and their inability to put their personal feelings aside and focus on SG's happiness. Indeed, many of the incidents that Petitioner referenced, in this court's opinion, stem from a breakdown of communication between the parties. There is also an interplay of provocation and poking the proverbial bear to garner a response that seemingly shows unfitness.

Conclusion

Based on the totality of the circumstances, the Lincoln Hearing conducted with SG, and having weighed the evidence and assessed the parties' credibility, the preponderance of the evidence supports an award of sole legal and physical custody with final decision-making authority to the father Kaleb G. Among other things, the record demonstrates that Kaleb G is better able to put SG's best interest ahead of his own. The court further finds that if awarded final decision-making authority, Petitioner is unlikely to meaningfully engage Kaleb G in the decision-making process.

Both parties are deeply committed and love SG, however, it appears that Petitioner seems to forget Kaleb G is SG's biological father and has parental rights. In the courts' opinion, many of the conflicts brought out in the trial could have been alleviated had Petitioner communicated with and included Kaleb G in the decision-making process.

The court finds that under the totality of the circumstances, in furtherance of SG's welfare and happiness, it is in her best interests to live with her father, Kaleb G.

Accordingly, in its discretion, after considering the relevant factors, the court awards primary residential and sole legal custody to the father Kaleb G.

The child, SG, is to have daily telephone contact with the Petitioner [FN2] and her siblings, JM and ER. In addition, it is in the child's best interest for SG to have visitation with Petitioner, the last weekend of every month. The Petitioner will pick up SG at Kaleb G's residence on Friday 7pm and drop her off at 7pm on Sunday. The pickup and drop off are subject to modification as needed and agreed upon in writing by the parties. In addition, the parties are free to modify to [*7]include any additional visitation as agreed upon in writing.

This constitutes the decision and order of the court.

Dated: November 10, 2021
ENTER:

____________________________
Hon. Phaedra Perry Footnotes

Footnote 1:The court initially conducted a Lincoln hearing of ER and SG in June 2019.

Footnote 2:The court notes that JM is 18 years old and could have filed her own visitation petition, however, she did not. In best interest of SG, the grant of visitation to Petitioner takes into consideration the fact that JM lives with the Petitioner. Even though ER now lives out-of-state, the court has full confidence that Kaleb G will facilitate visitation and other arrangements as agreed upon and in conjunction with ER's father.