Matter of Daniel W. v Lauren S.

[*1] Matter of Daniel W. v Lauren S. 2023 NY Slip Op 51210(U) Decided on September 15, 2023 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 15, 2023
Family Court, Monroe County

In the Matter of a Proceeding Under
Article 6 of the Family Court Act Daniel W., Petitioner,

against

Lauren S., Respondent.



Index No. XXXXX


Steven B. Levitsky, Esq. for Daniel W.

Louis E. King, Jr., Esq., Assistant Public Defender, for Lauren S.

Brian A. Strait, Esq., Attorney for the Children
Dandrea L. Ruhlmann, J. DECISION AND ORDER

Is it in the children's best interests for the children to live primarily with their father?

By petition filed March 6, 2023, Daniel W. (Father) seeks primary physical residency of the parties' children (Leif S-W. (DOB: XX/XX/2013) and Lilith S-W. (DOB: XX/XX/2016)). It is in the children's best interests for Lauren S. (Mother) and Father to continue to enjoy joint custody with Father having primary physical residency.

Credibility

Over three days, the Court heard the testimony of Father, Mother and maternal grandmother, Nancy B. The Court received into evidence ten exhibits: Petitioner's Exhibit 1, the children's school records for the 2021-2022 and 2022-2023 school years from Exploration Elementary Charter School for Science; Petitioner's Exhibit 2, the children's medical records from the Elmwood Pediatric Group, LLP, and Petitioner's Exhibits 3 -10, Text Messages (between the Parents).

The Court found all of the testimony to be credible (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 observing the demeanor of the witnesses]; see also Hendrickson v Hendrickson, 147 AD3d 1522 [*2][4th Dept 2017]; and see Matter of (Chyreck v Swift, 144 AD3d 1517 [4th Dept 2016]).

Children's Desires

The Court held an in camera with the children on August 16, 2023 and has considered the children's wishes as expressed by their attorney as well as their ages (10 and 7) (see Lincoln v Lincoln, 24 NY2d 270 [1969]; Fam Ct Act § 664). Although not dispositive, the Court has considered the children's preference. The purpose of an attorney for the children is "to help protect their interests and to help them express their wishes to the court" (see Matter of McDermott v Bale, 94 AD3d 1542, 1543 [4th Dept 2012]). Although a child's wishes are not determinative "they are entitled to great weight, particularly where their age and maturity would make their input particularly meaningful" (Matter of Stevenson v Stevenson, 70 AD3d 1515, 1516 [4th Dept 2010] lv denied 14 NY3d 712 [2010] [internal quotation marks omitted]; see also Matter of Rohr v Young, 148 AD3d 1681 [4th Dept 2017]; compare Matter of Lawrence v Marris, 151 AD3d 1879 [4th Dept 2017] [a child's desires do not chart the course of the litigation]; see also Matter of Williams v Reid, 187 AD3d 1593 [4th Dept 2020] [at 7- years-old and 5-years-old, the children were too young and not of sufficient maturity for their alleged desires to demonstrate a change in circumstances]).

Change of Circumstances

A party first must prove a "'change in circumstances which reflects a real need for change'" (Matter of James D. v Tammy W., 45 AD3d 1358 [4th Dept 2007], quoting Matter of Amy L.M. v Kevin M.M., 31 AD3d 1224, 1225 [4th Dept 2006]; see (Cowell v Pembrock, 113 AD3d 1118 [4th Dept 2014]); see also Matter of Higgins v Higgins, 128 AD3d 1396 [4th Dept 2015]) before the Court determines whether such a custodial/visitation change is in a child's best interests (see Pauline E. v Renelder P., 37 AD3d 1145 [4th Dept 2007]).

Best Interests

As stated in the Court's initial custody determination the parties' long-term relationship began in high school in their hometown of Southwick, Massachusetts and eventually (for approximately two years) they lived together as a family in Rochester, New York (Matter of Daniel W v Lauren S, 73 Misc 3d 1229(A) [Fam Ct , Monroe County 2021]). At the time of the prior determination Father had already returned to their home town in Massachusetts. Like the prior case, this is not a relocation case to which the factors set forth in Matter of Tropea v Tropea (87 NY2d 727, 740-741 [1996]) apply. The parents' locations have not changed. The relevant issue is whether it is in the best interests of the children to reside primarily with Mother or Father (see generally Eschbach v Eschbach, 56 NY2d 167, 172-174 [1982]).

Factors courts have carved out to ascertain the best interests of children, include (1) the continuity and stability of the existing custodial arrangement, including the relative fitness of the parents and the length of time the present custodial arrangement has continued; (2) the quality of the children's home environment and that of the parent seeking custody; (3) the ability of each parent to provide for the children's emotional and intellectual development; (4) the financial status and ability of each parent to provide for the children; and (5) the individual needs and expressed desires of the children as well as the need for children to live with siblings (see Fox v Fox, 177 AD2d 209, 210 [4th Dept 1992]; see also Matter of Braga v Bell, 151 AD3d 1924 [4th Dept 2017], lv denied 30 NY3d 905 [2017]). 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 [*3]Rosemary F., 148 AD2d 449 [2d Dept 1989] citing Friederwitzer v Friederwitzer, 55 NY2d 89, 94 [1982]); and see Matter of Plaza v Plaza, 305 AD2d 607 [2d Dept 2004]) as well as the effects of domestic violence (Hendrickson v Hendrickson, 147 AD3d at 1522). This Court has considered each of these factors in evaluating what custodial arrangement is in the children's best interests.

The evidence adduced at trial established that Father has proven both a change of circumstances and that it is in the children's best interests to live primarily with him. Both paternal grandparents and maternal grandmother reside in Southwick, as well as many members of Father's extended family. Witness testimony demonstrated there is a solid support system ready to help with the children in the parties' hometown. Unfortunately Mother's overall ability to successfully function has deteriorated since the entry of this Court's initial custody order, which has negatively affected her ability to care for the children.

The children have missed an inordinate amount of school days as shown by Petitioner's Exhibit 1. During the last school year Leif as a fourth grader, was absent 41 days and tardy 19 days; Lilith as a first grader, was absent 34 days and tardy 14 days. University of Rochester Psychiatry Nurse Practitioner Amanda L. noted on February 15, 2023 that she had met with Leif and Mother: "[Mother] report[ed] that she is trying to be 'as naturalistic as possible.'" Indeed Mother did not require the children to attend school, based on their own desires. Mother did not feel that the school was helping her. Nurse Practitioner L. further documented that she "provided education regarding the possibility of CPS being called as the children are not receiving formal home schooling. [Mother] acknowledged this possibility and stated that she was going to contact a psychologist friend about formally remov[ing] the children from school." Mother's text to Father (Exhibit 4), proposed "a medical withdrawal as an alternative to them catching some consequence as a result of their absences." Mother's own testimony reflected a similar, lackadaisical attitude, about the children's school attendance. Mother justified her position, relying exclusively on the fact that both the children were at or above grade level, while ignoring any social and educational enrichment that regular school attendance might afford them.

Mother's finances are unstable. Mother has not been employed even part-time since January 2023. Mother's messages to Father reflect her continual need for money to support herself and the children. Father complied with her many monetary requests above and beyond the $564.19 he paid to her bi-weekly in child support. Father suggested that Mother move back to their hometown of Southwick, Massachusetts but Mother firmly rejected this idea (see Exhibit 3). Mother acknowledged her lack of employability in Rochester writing that "getting blacklisted by the main science employer in this city really sucks."

Further, Leif is demonstrating ungovernable behaviors in Mother's care for which Mother seems ill-prepared to address adequately. Mother received a call from the school bus driver because Leif had been hitting Lilith on the bus. In a separate incident, Leif would not allow his sister to have a turn with a rake, so Mother locked Leif's phone. Frustrated Leif elbowed Mother in the gut. Mother describes Leif's behavior as "rage" and texted Father stating, "I don't know how much longer he can last at this point . . . he's been on a downward trajectory for a long time." Still neither Leif's medical records nor his school records reflect that Leif has such all encompassing issues. Instead Leif was diagnosed with anxiety. Following an appointment with University of Rochester Psychiatry Nurse Practitioner Amanda L. on May 22, 2023, Nurse [*4]Practitioner L. noted that "Leif is a 10 year old male with past psychiatric history of other specified anxiety disorders who presents to Child and Adolescent Behavioral Health and Wellness for psychiatric consultation. Leif is being seen for concerns of repetitive ritualistic behaviors associated with anxiety surrounding contamination. . . . Leif struggled to verbalize his thoughts during this visit, therefore [Mother] provided the majority of the information contained in this note."

Upon considering the totality of the evidence and weighing the best interests factors carefully, the Court finds it is in the best interests of the children that both parents remain joint custodians but that Father shall enjoy primary physical residency. The children have spent a significant portion of their lives both in Rochester, New York and in Southwick, Massachusetts. Father has now provided proof that the children's lives would be enhanced economically, emotionally and educationally by living with him.

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 hereby

ADJUDGED that Daniel W. has proved a change of circumstances and it is in Leif S-W. (DOB: XX/XX/2013) and Lilith S-W. (DOB: XX/XX/2016) best interests for the parents to continue to enjoy joint custody, with Father awarded primary physical residency of the children; and it is further

ORDERED that Father shall have final decision making after discussing each and every major decision affecting the children with Mother; and it is further

ORDERED that the children shall reside primarily with Father in Southwick Massachusetts; and it is further

ORDERED that Mother shall have temporary periods of residency with the children on long weekends, which include any State of Massachusetts and/or Federal holidays beginning on Friday until Monday at 5:00 p.m.; and it is further

ORDERED that Mother shall have two weekend visits from Friday to Sunday in the months of September, June and either March or April (in whatever month spring recess does not fall); and it is further

ORDERED that Mother shall have the entire school recess periods in both winter and spring; and it is further

ORDERED that during Summer Recess the children shall reside: (1) during the first two full weeks in June/July with Father, then (2) during the next six weeks with Mother and (3) finally with Father for the remainder of Summer Recess (all exchanges to occur on Sunday at noon) or as the parties otherwise agree and arrange; and it is further

ORDERED that the parties shall alternate time with the children for Thanksgiving with Mother having the children in even years and Father having the children in the odd years; and it is further

ORDERED that in the even years, Father shall have residency with the children on December 23rd at 4:00 p.m. until December 28th at 4:00 p.m. and in the odd years Mother shall [*5]have residency with children on December 23rd at 4:00 p.m. until December 28th at 4:00 p.m.; and it is further

ORDERED that in the even years, Mother shall have residency with the children on December 28th at 4:00 p.m. until January 2nd at 4:00 p.m. and in the odd years, Father shall have residency with the children on December 28th at 4:00 p.m. until January 2nd at 4:00 p.m.; and it is further

ORDERED that Mother shall always have the right to enjoy Mother's Day with the children, if she is able to travel to the children's location, and otherwise if the parties can agree to have the children come to Rochester; and it is further

ORDERED that Father shall always enjoy Father's Day with the children; and it is further

ORDERED that the holiday visitation schedule shall supersede the parties' regular visitation schedule; and it is further

ORDERED that the parents shall have other and further periods of temporary physical residency as they agree and arrange; and it is further

ORDERED the parents shall continue to exchange the children at the established location in Herkimer, New York, or as they agree to an alternate location; and it is further

ORDERED that each parent shall continue to have independent access to the children's school, teachers and medical and counseling providers and may receive information regarding the children directly from the providers, and the parents shall sign any release or authorization in order to effectuate such access; and it is further

ORDERED that Father shall immediately establish doctors, dentists, and counseling as needed, for the children in Southwick, Massachusetts and he shall provide all contact information to Mother in a timely manner; and it is further

ORDERED that both parties shall be allowed to attend any important events in the children's lives including, educational, extracurricular, social and religious, parent-teacher conferences or other school conferences; and it is further

ORDERED that each parent shall promptly notify the other in the event of a medical emergency concerning the children; and it is further

ORDERED that each party must keep the other advised at all times of their present address and phone number(s); and it is further

ORDERED that neither parent shall permanently remove the children from Hampton County, Massachusetts and/or Monroe County, New York without prior agreement and notarized consent of the other parent or an order from a court of competent jurisdiction, and it is further

ORDERED that neither party shall make any disparaging or derogatory remarks about the other in the presence of the children nor in the hearing of the children, nor permit any third party to do so; and it is further

ORDERED that neither party shall use physical punishment to discipline the children nor shall they permit a third party to do so; and it is further

ORDERED that neither parent shall consume excessive alcohol, excessive marijuana or illegal drugs in the presence of the children, nor shall they allow any third party to do so; and it is further

ORDERED that both parties shall facilitate daily telephone/facetime contact with the other parent; this duty shall not be relegated to the children, and both parents shall encourage the [*6]children to speak to the other parent for a period not to exceed fifteen (15) minutes daily, and the children shall be allowed to call the other parent at reasonable times; and it is further

ORDERED, that this is a fully superseding Order of Custody.

Dated this 15th day of September, 2023 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 CHILD UPON THE APPELLANT, WHICHEVER IS EARLIEST.