Matter of Jeremy VV. v Kara LL.
Annotate this CaseDecided on January 30, 2023
Family Court, Saratoga County
In the Matter of a Proceeding Pursuant to
Article 6 of the Family Court Act, Jeremy VV., Petitioner
against
Kara LL., Respondent.
Docket No. V-xxxxx-22
Jeremy VV., Petitioner, Pro Se
Kara LL., Respondent, by and through counsel
Stacey Gorman, Esq., Ballston Spa, New York
Kimberly Craig, Esq., Ballston Spa, New York,
Attorney for the Children
Michael J. Hartnett, J.
WHEREAS, Jeremy VV. having filed a Petition under Article 6 of the Family Court Act on August 25, 2022, seeking an Order relative to enforcement of a Judgement of Divorce with a Separation and Marital Opting Out Agreement which was incorporated but not merged with the judgment, to permit or otherwise allow the child, J. VV. (DOB: xx/xx/xxxx), to accompany Petitioner Jeremy VV. on a vacation to take place between February 6, 2023 through February 18, 2023; and
WHEREAS, the Court having conducted a Fact-Finding on the Petition herein on January 27, 2023; and
WHEREAS, the Court having considered the sworn testimony of Petitioner Jeremy VV., the sworn testimony of Respondent Kara LL., the sworn testimony of Cara O.-G.; and Exhibits marked Respondent's Exhibit A; Respondent's Exhibit D; Respondent's Exhibit E; Respondent's Exhibit F; and Respondent's Exhibit G. The Court, upon consent of all parties and counsel, has taken Judicial Notice of the Judgement of Divorce (McGrath, J.S.C.) issued by Rensselaer County Supreme Court signed on June xx, xxxx, and entered in the Rensselaer County Clerk's office on July xx, xxxx.
NOW THEREFORE, after due consideration, the Court finds:
FACTUAL FINDINGS:
The Court heard from three witnesses — Petitioner Jeremy VV., Respondent Kara LL., and Ms. Cara O.-G., a teacher from the minor child's school. The parties and Ms. G. testified in a manner that appeared genuine and sincere. The Court specifically finds that all the testimony provided during the Fact-Finding was credible.
The parties have two children in common, A. and J. As reflected in the Petition of Jeremy VV., and as was stipulated and agreed at the outset of the hearing, the continued disagreement over the cruise vacation only pertains to the minor child, J. The parties agreed that at A's request, she would not be going on the vacation.
J. — or "J." — is an eleven-year-old who is in the sixth grade at St. Mary's School in Waterford, New York, a private school. By all accounts, J. is an intelligent and articulate eleven-year-old, who particularly excels in athletics. J. is in the sixth grade and although he requires interventions and assistance, does well in school, maintaining a passing average.
Mr. VV. testified that he is scheduled to go on a two-week vacation that includes a Caribbean cruise which will depart from New York City on February 6, 2023 and return on February 18, 2023; with ports-of-call that include the Dominican Republic, St. Kitt's and St. Thomas. J. and A. have previously accompanied Mr. VV. on an international cruise with extended family. Mr. VV. has extended family that will be going on the cruise which amount to "20 to 25" people. Mr. VV. testified that prior to the cruise, they intend on taking a greyhound bus from East Greenbush to New York City prior to this ship departing. Mr. VV. testified that he would abide by any regulations regarding testing or screening for COVID-19, which he believes will be facilitated by the cruise line prior to departure. Mr. VV. testified that he would be willing to do "anything necessary" to assist J. with any homework or schoolwork that may be assigned to him by the school while they are on the vacation. Mr. VV. testified that he informed Ms. LL. of the plans as early as February 2022, which Ms. LL. acknowledged during her testimony.
Ms. LL. testified that she learned of the planned vacation in the spring of 2022, and immediately raised her concerns with Mr. VV.. Ms. LL. testified as to her concerns related to J. missing academic instruction, which she fears will set him back, and also that he will miss opportunities related to his extra-curricular activities including baseball conditioning sessions, basketball events/tournaments, and social functions. Ms. LL. testified that J. excels at athletics and plays both CYO Basketball and Baseball. Ms. LL. testified that during the proposed times for the cruise, that J. would miss practice and/or game time for both activities — including a baseball conditioning clinic, at least one basketball tournament, and an opportunity to go to the MVP Arena for a Siena Basketball game where after the game his team would play in the arena. On cross-examination, Ms. LL. testified that J. had previously participated in a similar experience at MVP Arena because of his coach being affiliated with Siena Basketball. Ms. LL. testified extensively that J. struggles with certain academics, with particular emphasis that when he falls behind or has "blocks" of work to finish he will become overwhelmed. Ms. LL. testified that J. has "less than 3" absences total this academic year. Ms. LL. also testified extensively as to her frustration with Mr. VV.'s lack of involvement with the children's academics, which often falls upon her to manage herself. Ms. LL.'s testimony indicated that Mr. VV. generally does not assist with any transportation of the children to school or otherwise, and she receives the necessary assistance from her mother. Ms. LL. testified to her perception that Mr. VV. does not adequately understand the child's academic challenges, or the amount of parental involvement [*2]required to keep J. in good academic standing. To quote Ms. LL, "[Mr. VV.] does not understand how detrimental [missed academics] could be."
The Court heard testimony from Cara O.-G., who is one of J.'s educational providers at St. Mary's School, serving as his homeroom teacher, Spanish teacher and a teach who provides "drop-in" instruction to J. in subjects where he may be struggling. Ms. G. presented as genuine, articulate and well-intentioned. Ms. G.'s primary — and only — point of contact relative to J. is Ms. LL. The testimony provided established that Ms. LL is in near constant daily communication with school officials and instructors in order to stay on top of J.'s school work. Ms. G. testified that she — and all of J.'s teachers — would have concern about missing two weeks of instruction, and the center of that concern would be the volume of work to make up. Notably, Ms. G. testified that the school may be able to provide some schoolwork that J. could do while away. In response to the Attorney For the Child's question about work being provided to J. ahead of time if he were to go on the cruise, Ms. G. testified that work could be provided, but that the day to day "help" that the teachers provide to J., or the ability to ask questions and get clarity on the work would not be there. Ms. G. testified that she is supportive of in-person instruction, especially for J. Notably, Ms. G. did not testify that J. was at risk of failing the sixth grade.
The Court also considered the documentary evidence submitted. Of particular note is Respondent's Exhibit G, which provides J.'s current grades which include: Art 6 (no grade); Earth Science 6 (83.00); English Language (80); Homeroom 6 (no grade); Mathematics (92); Music 6 (88.00); Physical Education (100); Religion 6 (71); Social Studies 6 (76.00); Spanish 6 (no grade). Respondent's Exhibit G also established that for the First Quarter 2023, that J. did very well academically, with the following grades: Art 6 (no grade); Earth Science 6 (85.00); English Language (95); Homeroom 6 (no grade); Mathematics (87); Music 6 (no grade); Physical Education (no grade); Religion 6 (84); Social Studies 6 (79.00); Spanish 6 (95.00).
The Court in reviewing the operative language of the Judgement of Divorce (McGrath, J.S.C.) issued by Rensselaer County Supreme Court in June XXXX; which incorporated but did not merge the terms of a Separation and Marital Opting Out Agreement; provides in part:
Under the Parenting provisions, Section 8(A), that the Mother and Father shall consult with each other and mutually agree upon the children's education whose well-being shall be at all times of paramount consideration of the parties."
Under the Parenting provisions, Section 8(G), "Each parent shall also have two (2) (consecutive or non-consecutive) weeks of vacation time with the children each year upon thirty days.
ANALYSIS
At the core of this dispute is whether or not this Court should direct enforcement of the party's agreement relative to vacation time as reflected in the "Parenting" section of the parties Agreement/Judgment of Divorce at paragraph 8(G), to wit: whether J. should be permitted to travel with his father on a two-week cruise that is scheduled to debark on February 6, 2023 from New York City and return on February 18, 2023, which will cause J. to miss two weeks of academic instruction.
"In adjudicating custody claims, the most important factor to be considered is the best interest of the children. Eschbach v. Eschbach, 56 NY2d 167 (1982), "which requires an [*3]evaluation of the totality of the circumstances." Id., citing Friederwitzer v. Friederwitzer, 55 NY2d 89 (1982). As stated by the Court of Appeals in Tropea v. Tropea, the predominant emphasis in any proceeding under Article 6 of the Family Court Act, is the outcome that will serve the best interests of the child. Tropea v. Tropea, 87 NY2d 727, 739 (1996); see also Matter of Stephen G. v. Lara H., 139 AD3d 1131, 1132 (3d Dept. 2016).
"The denial of visitation to a noncustodial parent is a drastic remedy that may be ordered only if compelling reasons and substantial evidence exist showing that visitation would be detrimental to the child's welfare." Matter of Jessica D. v. Michael E., 182 AD3d 643, 644 (3d Dept 2020); see Matter of William V. v. Christine W., 206 AD3d 1478, 1481 (3d Dept 2022). Nonetheless, the presumption may be rebutted where a preponderance of the evidence demonstrates that visitation would be harmful to the children's welfare or contrary to their best interests. Matter of Granger v. Misercola, 21 NY3d 86, 90-92 (2013); Matter of Ajmal I. v. LaToya J., 209 AD3d 1161, 1163 (3d Dept 2022).
Mr. VV. has proposed to take J. with his extended family on a two-week Caribbean cruise. The Court finds that as a baseline, absent any countervailing concerns, that the prospect of J. spending extended time on vacation with his father, Mr. VV. and his extended family, would be presumptively in his best interests and also consistent with the terms of the prior Order. Dharamshot v. Surita, 150 AD3d 1436 (3d Dept. 2017) (internal citations omitted).
As an initial point, the Court finds that Mr. VV. complied with the provisions of the operative Order from Rensselaer County, in that he provided more than thirty-days' notice of his intention to take the proposed vacation with J. Of note, the parties Separation and Marital Opting Out Agreement provides that the parties shall be entitled to up to two weeks of parenting time for purposes of vacation, upon 30 days' notice to the other party (emphasis added). The terms of that agreement do not provide any qualifiers or restrictions on when or where the vacation time may be exercised. In this instance, the 30-day notice requirement was more than met, as Ms. LL. was provided notice at least nine months in advance of the vacation.
The Court specifically credits Mr. VV.'s testimony that when he booked the trip, that he was attempting to schedule the trip to include dates when J.'s school would not be in session. The evidence submitted established that the academic school calendar for St. Mary's was sent out in August, which is not an atypical course of events, although Ms. LL.'s perception is that "everyone, including people without kids" should know what the school calendar is years in advance — even before it is published by the district. However, there is no way Mr. VV. could have known with any concrete certainty when the February break was going to occur at the time of the scheduling of the cruise. To the contrary, Mr. VV. testified that when he scheduled the cruise, he made what amounted to an educated guess as to when the school break was going to be in an unsuccessful attempt to minimize the children's [FN1] absences from school. By the time the school published the academic calendar over the summer, the planned vacation, which includes over twenty extended family members, had already been booked.
It is apparent that Ms. LL. cares for her children and is a motivated parent who is involved with all aspects of their lives. It is also clear to the Court that Ms. LL. is abundantly frustrated with what she perceives as Mr. VV.'s lack of involvement or initiative with respect to [*4]his children, which results in her shouldering most of the parenting responsibilities. However, Mr. VV.'s parental shortcomings, real or perceived by Ms. LL. - and however frustrating they may be to Ms. LL. — under this fact pattern do not, under the totality of the circumstances, outweigh the benefits of the proposed vacation and travel for J. with his extended family. The Court is mindful that international travel can have a benefit to a child.
The Court is cognizant of the concerns raised by Ms. LL. at the hearing regarding J.'s academic circumstances, and the potential additional work that will need to be completed if J. is allowed to go on the cruise with his father. The Court is likewise sympathetic to Ms. P.'s concern that she may very likely be the parent responsible for working with J. to complete the missed schoolwork. However, Mr. VV. did testify that he will work with J. to make up any missed schoolwork, and that he would also work with J. during the cruise on any work that the school provides to J. in advance of the cruise. Therefore, if given the opportunity to do so, Mr. VV. can and should assist J. before, during, and/or after the cruise if needed, with any schoolwork that needs to be completed. The Attorney for the Child, as well as the parties, conceded during the hearing that J.'s grades were on average about mid 80's, and the Attorney for the Child indicated that J.'s grades were good, and that he was not at risk of failing. Again, J.'s teacher, Ms. G., did not testify that J. was at risk of failing, nor did she testify that he would be at risk of failing if he were to go on the cruise. Ms. LL. testified that J. has been absent for less than three days (all of which were excused) the entirety of the 2022-2023 academic year. There was no direct testimony or evidence submitted that conclusively demonstrated that if J. were to attend the cruise, that he would be in jeopardy of failing this academic year. To the contrary, based upon the testimony of Ms. G., it appears that J.'s teachers can provide at least some of the schoolwork that J. would miss during the time of the cruise, and J. could even potentially communicate with his teachers online with any questions he may have while he is on the cruise.
Likewise, there was no direct evidence submitted at the hearing that J.'s health or safety would be at risk if he is permitted to accompany his father on the cruise. Compare Awan v. Awan, 63 AD3d 733 (2d Dept. 2009).
One of the factors the Court may consider in determining what would be in the best interests of the child is the wishes of the child. See Matter of Yeager v. Yeager, 110 AD3d 1207, 1209 (3d Dept. 2013) citing Matter of Rivera v. LaSalle, 84 AD3d 1436, 1439 (3d Dept. 2011), (holding that the wishes of the 12-year-old child was entitled to consideration at a minimum). The Court has considered the position of the child in support of the Petition, and the Court has afforded J.'s position — which is that of a clearly intelligent, well-spoken and articulate eleven-year old — substantial weight in determining the outcome of the underlying petition. The evidence submitted indicated that J. gave thoughtful consideration to the pros and cons of going on vacation with his father. The Attorney for the Child stated on the record that she had met with and communicated with J. on multiple occasions and discussed the cruise with him and the issue of his schoolwork that would need to be made up, as well as his extra-curricular athletic activities he would miss. The Attorney for the Child further indicated that J. was clear to her his wishes of attending the cruise with his father and his extended family.
As noted, Respondent's stated concerns raised with respect to J.'s education are sincere concerns which the Court has given significant consideration. While certainly not ideal timing, such concerns and potential negative impacts are outweighed by the child's wishes and the inherent benefits resulting from spending uninterrupted parenting time with his father and his extended family, and as such the Court determines it is in J.'s best interest for Petitioner to be [*5]provided with parenting time / visitation for an extended period for purposes of travel and vacation from February 6, 2023 to February 20, 2023, to include J. accompanying his father on a Caribbean cruise.
; as such it isORDERED and ADJUDGED, that after due consideration and based on the reasons stated above including consideration of the credible evidence before the Court, that the Petition of Jeremy VV. is GRANTED; in that the Court determines it is in J.'s best interest for Petitioner Jeremy VV. to be entitled to extended parenting time / visitation and to be permitted to travel with J., for the proposed two-week vacation in February 2023 to include going on a Caribbean cruise from February 6, 2023 to February 18, 2023; and it is further
ORDERED, that Respondent Kara LL. shall not prevent, impede or otherwise frustrate Petitioner Jeremy VV's exercise of the properly noticed parenting time / visitation with J. between February 6, 2023 and February 18, 2023; and it is further
ORDERED, that on or before February 6, 2023, Petitioner Jeremy VV. is directed to provide Respondent Kara LL. with a full written itinerary (via email) of the child's travel schedule, including all transportation providers, dates and locations of stay, ports of call, and emergency contact information; and it is further
ORDERED, that Respondent Jeremy LL. shall comply with all operative Center for Disease Control ("CDC") and United States Department of State Guidelines and requirements that are necessary for international travel from, and return to, the United States to enable J. to participate in the proposed February 2023 vacation including a Caribbean cruise; and it is further
ORDERED, that Respondent Jeremy VV. shall facilitate the subject child being able to call and/or videoconference (commonly referred to as "facetime") with Respondent Kara LL. during the parenting time being exercised between February 6, 2023 and February 20, 2023, and Petitioner Jeremy VV. shall not impeded or otherwise frustrate any attempt by the child to call or videoconference with Respondent Kara LL. during the February 2023 vacation; and it is further
ORDERED, that prior to February 6, 2023, Petitioner Jeremy VV. is hereby directed to contact St. Mary's School and confer with the faculty at St. Mary's School to facilitate, to the extent such information is willing to be provided by St. Mary's School, the provision of any schoolwork or instructional materials for the time J. will be absent from school during the February 6-18, 2023 cruise and/or subsequent February school-break, including the ability of J. to access any instruction/teachers online during the cruise; and it is further
ORDERED, that Petitioner Jeremy VV. is directed to take all steps during his parenting time for purposes of the vacation from February 6, 2023 to February 20, 2023, that are reasonably necessary to ensure that J. completes any assigned schoolwork that is provided by St. Mary's School; and it is further
ORDERED, that Petitioner Jeremy VV. is directed to keep a daily written log of the time devoted each day for J. to complete educational instruction and/or schoolwork between February 6, 2023 and February 18, 2023, such written log to be provided to J.'s educators at St. Mary's School prior to his return from the February 2023 school break; and it is further
ORDERED, that Petitioner Jeremy VV. is hereby directed to take all reasonable steps necessary to ensure that J. is provided with the means to access any educational materials necessary to participate in educational instruction and/or complete schoolwork that is assigned to him by St. Mary's School during the February 2023 vacation; and it is further
ORDERED, that the terms and conditions of the Judgement of Divorce (McGrath, J.S.C.) issued by Rensselaer County Supreme Court in June XXXX; which incorporated but did not merge the terms of a Separation and Marital Opting Out Agreement, not inconsistent with this Decision and Order shall remain in full force and effect; and it is further
ORDERED, all parties shall take notice that: pursuant to section 1113 of the Family Court Act, an appeal must be taken within thirty days of 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 Child upon the appellant, whichever is earliest.
Signed and Dated: Ballston Spa, New YorkJanuary 30, 2023
E N T E R
____________________
Hon. Michael J. Hartnett
Family Court Judge Footnotes
Footnote 1:At the time the vacation was booked, the intention of Petitioner was to take both A. and J. on the vacation.
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