custody decision false allegations of domestic abuse

8/10/2019 Custody Decision false allegations of domestic abuse

1/14

f o p

ih@

O m i n t y o f

. Submitted No vim bif5 2014 Deeidod Nov imber 17,2014

Pili

No,;

5774

Do cktt Nog.: V .027641/14A

V'0027541/14B

OHEISTY'

PwnrEsMpondm,

DAVID I

Respondent-Petitioner.

Decision and Order

Bryan Ldam

eimellv.

Esq.

LakePlacid New York for

Christy

Whitson Law {Debra A Whitson Esq. of counsel)

Habehown

N ewYork for David

Omshanti

Pamea Esq.

Plattsburgh , New York, Attorney

for the Child,

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ge 4

. .x xu f e i :

r- * ,

P etitio ns by C W y ' .)and David^

for modllkation ofm order of custody and visitation datta

October

il,

20U,

.'H't'lrA oomffloncid btr proceeding

on

Jimus*y 10,2014 by fiUag

&

petition an d an affidavit for im orf ncy reliif in the n atu re of an

immediate, ^p^^^ tem po rairy orde-rof custody of the parties then four

year old child(d/o/bi 02/01/20003. After taklnf/r?


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tt eisim mA Of dee

statimen ts whkh turned out aot

to be

tru e or whleh were ao t proven,

It came to light a t trial th at the i nstant petition was handwiritten by Brown

who was then under the influenot of

drugs,

a condition of whichrno r

knew or became aware shortly after leaving the court house. Alcm never

disclosed that circumstance to this Court until trial, some ten months

later, Mem ; adm itted knowing th at Brovm wasa hardcore intravenous

drug

user

and yet she thought itwasa good idea**fof Brown to have

mitody ofc cxcV ' ion with Brown. Additionally,me.M testified on

January 10,2014

to

alleged

acts

of physical and verbal abuse by d a d

of her and the child, none of which were proven at trial. Although she then

testified th at .c\cvd struck the child in the face with his open hand

bloodying the child's

nose,

at trial

she

admitted tha t

she

did not witness

this alleged incident. She told the Court at tha t initial appearance tha t she

had m et with dom estic violence and child protective service staff an d tha t

she would be relocating with the child to Tupper Lake, At trial, she

contradicted this testimony, adm itting not only tha t she did not meet with

anysuch persons but thatshe alsoreturnedtothe home she shared with

^^K


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Page

ThampMM

m

A.md BIB,Bll-BIB,

^80 N.Y.S,2d 181,

IBB

[M

Dipt.,

imBh m V-PMrkhuP t 23A,D,3d 923, 023^4, SOS

N,Y,i.2d

155,156

[SdDipt,,

2005]

[ As

ixlgtinf eustady ordtr will

b

mddilled only

if

thiri

i s n

ihdwiag

of n

changi

n

circsumstaneis rtvitliof

artt l Rifdfer themodifleatieainordertoensureth ebest interestsof the

ebildren ). It isonly when this threshold ihowlnghasbiin madt that

Family Courtms preoiid to undertake a best interest analysis

s

Matter ofOpifflnv.Qdffln,

Bupr a t 909,795 N,Y.S,2d

367) iMmJL

Lsraha.24A,DJd

976,977,807N.Y.S.2d161 [Sd

Dept.,

2005]}

Jm,

Kevwinv. EerwM 39

A,D.ad

050,951,833N.Y.S.2d604,606 [Sd

Dept.,

2007]),

Here, a changeofcircumstanceswasestablished by the partiei '

reconciUationandcohabitation followingth October 2011 custody order

frantinf joint legal custodyandprimary physical custodyof thechildto

FlemingJMm imartinv.

mimartin.

44A.D.Sd1099,1101,845 NXS.2d

466,468[3dDept.,2007]).Moreover,there isarealanddefinite needto

modifyth e esfsting custody order sincetheevidence showed that Ji cmhas

continued withhermental health treatmentasrequired bytheOctober

2011order and she was able to care for the subject child and other

children, though

not

without some significantly concerning behavior

involving

a

child

not her

own,during

he r

post-order cohabitation without

supervision. 'Supervised visitationisappropriately required only where

it is

established that unsupervised visitation would

be

detrimental

to the

child

Matter

of

ainzav.

Gamssa,24A.D.3d

561,808

N.Y.S.2d

296;

see

Roaenbergv, osenberg

44 A.D.3d

1022,1024,845

N.Y.S.2d

371;PurceU

V.urceU SA.D.3d

752,753,773

N.Y.8.2d

569) Cerverav. reasler. 60

A.D,3d

837,839,865

N.Y.S-2d

668,661

[2dDept.,

2008]).This Court finds

that

th e

evidence established that

it

would

not be

detrimental

to the

child

for

(r* to have unsupervised

visitation,

C.

As to th echangeofphysical custody soughtby N^vn in herpetition,

this Courtfinds,based upon

mv>s

lack

of

credibility

and

failure

of

proof,

that primary physical custody

of the

child should remain with d^vtl

as

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fags'I ...^

pmvidsd

in the Od^pbtr

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srd#r because such is in the child's best

intereits,

'Wb

there is no indication tha t a c h ^ e in cujtody will

result in si^iU ca ntl y ea ht ae in f a child's welfare* It is pn er al ly considered

in his best interest not to disrupt his life'

(Mm,

PamlskI

v BmhholtM

mpm t t 1201,450 N,t ,SJd 100) (QUahmUv.

OtshMl

105 A,D.2d800,

805,

560 N,Y,S,2d 350, 808 [Sd Dept., 1000]). ^'The custody of Infant

childrtn is not to be shifted ftom parent to parent merely btcauio the

noncustodial pa re nt has experienced an improvem ent in coiuiltion,

status,

or character. At least this i tru e

so

long

as

the custodial parent has not

been shown to be unfit, or perhaps less fit, to continue to serve as the

proper custodian,E,g., People exel.

Oendexiing

v.

Gleadenlng

250

AppDiv 38 4,10 N.Y,8,2d

603,

ammedm

NY 598,29 N,E,2d

926;

MatterofStandieh,

197AppDiv 176,183,18 8N.Y.S.900,90S, affirmed233 NY

689.136 N l

972;

People ex

el. Luddenv.

Wimton,84 Misc 21,6 9

N.Y,8,

452,

emrmedet

AppDiv614,7 N,Y,S. 1146;

AppUcatlon

ofJackaon,

19

Mi8c2d 504, 160 N.Y,S,2d 578; estatement

Oonllict

of Laws, $ 148.

AppUmtion

fLanf. 0 A,D.2d 401,409,19 3 N .Y.a2d763,770-771,affd

7 N.Y.2d 1029,200 N,Y,S.2d 71,166 N.E,2d

861;

aee,

also,

MatterofWout

V.Wemt

32 A,D.2d 709,300 N.YS,2d

24),

In arriving at this determination, this Court has considered the

requisite fjactors:

Among the factors to be considered prior to t he modification

of the parties' stipulation are the quality of the home

environment and the parental guidance th e custodial p ar i^ t

provides for the child

{Escbbachy.

Eachbach, supra,a t

172,

451 N.Y,S.2d 668, 436 N,E.2d 1260;Matter of Ebert v.

Ebert

38 N.Y.2d 700, 702, 382 N.Y.S,2d 472, 346 N.E.2d

240);

th e ability of each pare nt to provide for the child's

emotional an d intellectual development{Porges v. Porges,63

A.D,2d 71 2,71 3,40 5 N.Y.S.2d

115,

Iv. denied, 45 N.Y.2d710,

409 N,Y.S.2d 1029,381 N,E,2d616); the financial statu s and

ability of each parent to provide for the child

Eachbach

v.

Esehbach, supra);

the relative fitness of the respective

pare nts, as well as the length of time th e presen t custody has

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406

U.S,

645 ,661,02 S.Ct, 120 8,31

L,ld,2d

551,

dt ing Mêi-

v. NebrMske,

262 U,S,390, 399, 43 S,Ct, 625,67 L.Ed, 1042;660,

&l o,

Pknmd

PamntbQQdofOmt.Miamuriv. Dmibrth,428U J . 62,90,96 S.Ct,2831,

49L.ld.2d 788

wuri

J., CdQCurring)) SniwJsiJsv. Entwistls,61

A,D.2d 880,884,402 N,y.S,2d 213,216

C2d

Dipt,,

1978]).

Moreover, the

sole source of th is evidence wa? \y>civj ' testimony, and she simply viras not

a credible witness.

The facts relativeto thequalityofthe home

avronmens

the

ability of each pa rent to provide parental guidance, and the financial status

and ab ility of each pa ren t to provide for thechild,all favor câd ,This

Court

did not

find credible accusation th at

AeA

; struck

or

otherwise physically or em otionally abused either the subject child or lue

son with Brown^ Pt^v^ ^ has a stable residence with his girUHend in her

four-bedroomhome inTiconderoga, New York. Also residing w ith him is

th eson hesh ares w ith Brown, for whomBôJ has been awarded sole

legal and physical custody. The subject child has her own room. Both


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s

4-

Qidildii iodOf dti

umi M with th. wreng

m

1. eoni tont withAc ^

t i i timony th at

foo

took

m

itepsto

Mvdih

hr so n's drug

us

wh@n

they iU resided tog ith#r , ThibihiviorofOr)*^'$; oldest son durin g much

of the time this proceeding has been pending, including his open drug use

md

defiance

ffoc ris rules,

and

th

child's poori^latioaship

vdth

frvom's

other son, a re problema tic forthchild to reside prim arily in

mt

n fs heme,

Also,

after relocating with

th

child to Tup per X^ke in Januazy , she

failed to continu e the child 's schooling, When

i i m

and Brown both

appeared

befbr

this Court on January

10**',

thi s Court offered to issue the

temporary order of protectionsoastoallow mi m. and all of the children,

except for

c c uA^

ion who was then placed in Brow n's temporary

custody based upon inaccurate and subsequently un substa ntiated claims,

to reside in the Mineville, New York residence an d continue in th e Moriah

school district.vM mdeclined th at offer, representing to th is Court tha t

she would be going to Tu pperLake,which this Court inferred m eant tha t

day, P cifY decisionto leave d a ^ V ,wasn otmade onthe spur-of-the-

moment. Rather, she and (^c^^ had discussed separating for

approximately one m onth before January 10, 2014, and ryiov^n had also

discussed it with the grandmo ther. Furthermore, th e testimo ny of n t.*in

regarding her association w ith Brown indicates tha t

she

and Brown had,

to some degree, planned th e

events

of Janua ry

10*

befbrehand. Yet she

made n o plans for continuation of the subject child's education and it does

not appear a t all tha t she considered th e impacts upon any of her children

from her

relocation. This

lack of judgm ent and plan nm g resulted

In

the

subject child no t receiving education- for the remainder of the school year

and a progressive deterioration of her oldest son's behavior and drug

abuse, For many of these same reasons,

^ c\K

is be tter able toprovd

for the child's emotional and intellectual development.

As to the relative fitness of the respective pa rents, (

VTCY

^ is less fit

than:

di-d

to be the custodial paren t. In additiontoth e facts outlined

above,> *)c\y> took

dad

'5 son to the pediatrician without

cXatVs

knowledge or permission in order to obtain a new medication for the

child's

behavioral disorder. She informed th e pediatrician th at the then

prescribed medication, Strattera, was not working on the child and she

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Fsp40

esiiisn

mi

requesteda aew medicatioB, Thepedlatrielan prescribedCeneerta,wMeh

t>ncn^accepted without tellingthepediatrician thatWLoA Jwouldnot be

in

fovor

of

thatm edication. She then proceeded to have

the

prescription

mied

i nd

then inform

th e

pediatrician

of

ac\: . objection

to

that

new

medication. Whenthepediatricisn's o0ce inlsrmedherthatsh eneeded

tobringth eOoncerta medicationto theofficefor disposal, sheresponded

thatshe hadalready disposedof the medication, aclaim which couldnot

biubitantlated.Similarly,

whea*^'

' ^

moved

to

Tupper Lake

la

January

she

tookixd' son's Strattera medication with

het .

When considered

againstthebackdropofj^e /n 'gprior subitance abuse history with these

typesof medications, heractionsandjudpienti are

suspect,

to say the

least. Herdeceptiononthis Courtinordertoobtainatemporary orderof

custody, herlackofcredibilityat trial, and theforegoing conduct involving

a

child

not her

own,compels this Court to conclude that 'cAt^'vA^

is the

moreflt

parent.

Priority

in

custody di lutes should usually

be

given

to the

parent

who was

first awarded custody

by the

court

or to the

parent

who

obtained

cuitodyby voluntary agreement

( iii3ii /i -.E

v.VictoriaB.,

148A,D.2d

362,

264,

532 N.Y.S.2d

176;Richman

v. iclmaii 104A,D.2d

934,

935,

480N,Y.S.2d551;

se also Friederwitzer

v.

riaderwitsser

55N,Y.2d

89,

94,

447 N.Y8.2d 893, 432 N,E.2d 766)

JWhitB

v.

H azzBlla Whita,

84

A.D.3d1068,1069,924N.Y.S.2d418,419-420 [2dDept.,

2011]).

However,

wherethefirst awardIs theresultof a stip ulat ion ... it isentitledtoleas

weight than adisposition after aplenary trial (Matter

of parlJ.B. v.

Dorothy

T

186A.D.2d 736, 787, 589 N.Y.S.2d 63, 64)because [n]o

agreementof thepartiescanbindthecourtto adisposition other than that

whichaweighingofallof thefactors involved showsto be in thechild's

best interest(People

ex rel.

Wasserbergerv.

Wasserberger

42A,D.2d93,

95,345N.Y.8.2d

46,

aifd

on

opn.

elowZ4

N.y.2d660,355N.Y.S.2d580,

311 N.E.2d651) (Friederwitzerv. riederwitmT. 65N.Y.gd89 ,

96,

447

N.Y,S.2d893,896,432N.E.2d

765,768).

This factor also fkvorsFleming.

Simplyput,*V)i>rY) failed toestablish bythepreponderanceof the

credible evidence thatth eOctober 2011 custody order shouldbemodified

so as to

award

her

primary physical custody

of the

child

or

sole legal

9T TT iOAIIWJ lO X3SS3

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e i d f l mi Of4^

custody, This Court di sig ro ii vidth t h t reoom mtn dttion of th t attorney

for th i child, Such rtcommendatioa is hastd upon the a tt o m ^ 's

ecceptanee of

tY i-Ti

s testimony, which this Court found to be lacking in

believability. M oito fthe attorney's arguments are address^l above. The

attorney's aisertlon tha t ir^em was the primary parentwhilethe parties

cohabited is iniufAcient to justify a change in custody. No proof was

offered of the number, dates and times of any n^icsl or dental

appointments or of

T c A^^

i availability to attend them , The fact that

Ickc ik was

no t there does not establish tha t he abandoned the eh M . If

o la c\s working, then it is reasonable tha t he was not there,Atm

all,they were livinf as a family unit and w here one pare nt Is working and

anothe r is not, It often h appens tha t the non-working paren t take s chUdr'en

tosuch appo intmintg.

This Cou rt recognizes th at th e re tu rn of th child to

dacl ^

will be

disruptive and oonftising to the child, Tha t a change in custody may

provetemporarily disruptive to the childrenIsnot d eterminative, forall

changesIncustody are disruptive Mshra

v

Uhlar 43N,Y.2d242,249,

401 N ,y .a2d 168, 171, 372 N,B.2d 4, 7 [1977]). However, It is In the

child's best interests tha t

OoA

liavprimary physical custody. This is

particularly so sincevwc(r*\* > actions here, by reason of her false and

deceptive allegations a t the outset of this

case,

wrongfUUy interfered with

d>c

ore lationship with t he child. **[S]o jealously do the cou rts guard

the relationship between a . . , parent and his child, th at any interference

with itby the [other] parent has been said to be 'an actso inconsistent

with the best interests of the children as to, per se, raise a strong

probability that the [offending party] is unfittoact as custodial pa rent.'

(EntwMe v, Entwiatle,

61 A.D.2d 380,384-38fi, 402 N.Y.S.2d 218 [RABIN,

J.],app.dsmd. 44N.Y.2d851,) CDsfhirv.Dae-hlr,82 A.D.2d 191,194,441

N.Y.S.2d 494,496,afSnnedBGN.Y.2d936,453N.Y.8.2d 609 ,439 N.E.2d

324

[1982]).,

D,

The only real and ''definite need to modify the October 2011

order proven by the credible evidence involveslvi.ms parenting time,

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DsmiQn

tnd rder

ntmtly, that supervised parenting time is net justified er appropriate,

Impiem entstion of unsupervised parenting time will be 6ompli0ated by her

laok of transp ortation imd th e almost one and one-half hou r ene -wi^ travel

time between her curre nt residence and th at of > Although she

testified that she has no driver's license due to an alcohol-rekted

conviction, it is unclear whether she Is still w ithout such a license by choice

or is prohibited fi-om obtainin g

one. I > A A V

' modification petition only

seeks restoration of the October

2 X1

order.

The October

2 11

order is modified so as to provide

lY^ommth

unsupervised parenting time to consist, at a minimum of three (3)

w etl an ds pe r month, to occur on the first, second and fourth

iill

weekends

of each month. A

Ml

weekend of each mon th means tha t both Saturday

and Sunday of a weekend fall in thesamem onth . M


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n

Qtim

wmkm

of iv tr y month, each weekend to eommenoe

on Friday4:B pM and continue until the Sunday

immediately thereafter at

4:

p.m. (unless the child

does not have school on the Monday alter such

weekend in which event the parenting time shall he

extendedto such Mondaya t4: p.m.; and

(b) such other and different parenting time as the parties

may m utually agree.

4.

Except as m s^ be otherwise agreed between the parties,

transpo rtation of the above-named child for exchange between the

parents shallbeas follows; the parent whois to receive th e

above-

named child for pa renting time shall pick the child up at the other

pa ren t s residence or at such other location as the parties may

agree,

5.

The child shall have reasonab le, liberal and age-appropriate

communication by

teleQ[ hone

or other electronic or written means

with one pare nt when th e child is physically with the o ther pare nt,

and the child shall be allowed to engage In private unmonitored

communications.

6. The partie s shall share parenting time with the child during the

periods during which the child s school is in recess, including for

holiday and summer vacation periods, the same to be agreed

between the parties.

7.

During her parenting

time,

Christy . shall cooperate with

and insu re t ha t the child engages in all school, extra-curricular and

other activities, program s and events in which the child is involved,

and she shall not in any respect interfere therew ith. She shall also

support and encourage the child s participation in such activities,

programs and events.

8. The partie s shall have equal access and r i ^ t s to all health care and

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Dedddnmd Order

@dugati@njil r@@srds of th i child and ghall be pe rm itted

to

attend all

school m ee ti n p, lunctione and events involving the child as well as

all health care appointments other than behavioral health

appointmen ts in which the child has

a

r i ^ t of confidentiaWty.

B. The foregoing term s and provisions shall supercede and replace all

prior orders, flnil and tra po rtr y, of th ii Court,

PURSUANTT0SECTI0N11130FTHBFAMILYC0URT

ACT, AN APPEAL FROM THIS ORDER MUST BE

TAKEN W ITHIN 30 DAYS OF RECEIPT OF T HE ORDER

BY APPELLANT IN COURT, 35 DAYS FROM THE DATE

OF MAILING OF THE ORDER TO APPELLANT BY THE

CLERK O F COURT, OR 30 DAYS AFTER SERVICE BY A'

PARTY OR THE ATTORNEY FOR THE CHILD UPON

THEAPPEL LANT, WHICHEVERISEARLIEST.

C^derawiJledon [ipeclfy date ) Andt whom

mailed]:

M ^ I ^ J X ^

Order

received

In

court on

lapecify,

dated and towhom givenj:

cc:

Bryan Liam Kennelly, Esq.,

Debra A. Whitson, Esq.

?J^Cs^

ujj? { , s/

Om sbanti H.

Parnes,Esq '-^

David

Christy * '

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custody decision false allegations of domestic abuse

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