father awarded sole custody

8/10/2019 Father awarded sole custody

1/20

amtlii EnurtafH^t UU nf^m fork

For the County of

Essex

Submitted

September

26 2014 Decided November 20 2014

FileNo.:6768

Docket Nos.: V-00134-14 V-00135-14 V-00136-14

V000137-14 V-00138-14 V-00139-14

JAMES

Petitioner-Respondent

-

against-

A MA ND A

Respondent-Petitioner.

Decision and Order

ErinE. Hayes Esq. Chestertovm New

York

for Amanda

DebraA.Whitson

Esq.

Elizabethtown New

York for

James

DavidE.Rudgers

Esq.

Ticonderoga NewYork Attorney

for

the Children.


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-2-

ecision andOrder

Petitions by

James

' ( the father ) and Amanda

(the mother ) against

each

other for custody andvisitation

o f

the

children

Gabriel (d/o/b - 01/25/2010), Isaiah , (d/o/b -

01/25/2010) andT rini ty (d/o/b - 02/17/2012).

A

tr ia lof theissueswas held on September 25* and 26' , 2014 at

which three

witnesses

plus the parties testified. A

Lincoln

hearing

{Lincolnv

Lincoln 24N.Y.2d270,273-274,299N.Y.S.2d842,247N.E.2d

659)

o f

thechildrenwas not conducted due

to

the

young

age

of

thechildren

and the representations of counsel and the parties that such a hearing

would

notprovideany relevantinformation. This Court has

assessed

the

character, temperament, and sincerityofthe parents, and evaluated the

credibilityoftheparentsand other

witnesses

basedupon their

demeanor,

the manner inwhich they testified, and the consistency, accuracy and

probability

or improbability of their testimony in

l ight

of all other

evidence. The facts determined fromthe credible evidence are set forth

throughout this decision and order.

A.

The

parties are themarriedparents

of

threechildren,twotwinsons

G.

and

I .

born January 25, 2010) now 4

years

old,

and a daughter

T.),

bornFebruary 17, 2012), age2. The parties were married on September

1,2009i nthetown

of

Ticonderoga,Essex

County,

New

York. A t

the time

of her marriage, the mother had a 3 year old son (J.) from another

relationship, and the father was serving in the

United

StatesNavy,

stationed atNorfolk,

Virginia

on the U.S.S. Harry S. Truman. Following

the ceremony, the parties moved toNorfolk,V irginiawhere they resided

unt i lOctober, 2012 when the father was honorably discharged from the

service. Whilestationed inNorfolk,Virginia,the father was often serving

tours

o f

dutyaboard his assigned vessel, and the mother was at home

with

herchild. Histours

o f

dutycouldrange

from

three

days

to onemonth,and

on

one occasion he served asevenmonth deployment. The mother's son

J. also residedw i ththem and she encouraged J. tocallthe father Daddy

and

similar

names.


3/20

Page-3-

ecision and

Order

I n

August2012,

while

the mother was

in

the Hague,

New

York

area

visitingherparents w i ththechildren, she was notifiedby the father that

he was being discharged. By agreement between the parents, all three

boys (J., G. and I.) were

left

w i th the maternal grandparents, and the

mother andT.returned toVirgin iato

assist

in packing uptheir belongings

forrelocation. The parties agreed to move to the Hague,New

York

area

and,while they lived

w i th

the mother s parents, the father wouldseek

employment.While

l iving

in the maternal grandparents home essentially

a one-bedroom residence- the grandfather slept on theonlybed in the

housei n the bedroom, the grandmother slept i n a chair, the father and the

mother slept on couches, and the fourchildren slept on the floor.

FromNovember 2012u n t i lmid-February 2013, the father sought

employment in the

area.

The parties agreed that hewouldlookforwork

on

the

east

coast

from

Maine to Florida, and when he obtained

employment theywouldmove to that location and not move again. The

mother testified that this search

area

was acceptable to her since it

involved onlya one

day s drive

to her

parents

homein Hague, aclaimthat

is belied by the fact that Florida is approximately 1200 miles distant and

not a one daydrive. The father not onlysought employment on his own,

but he used the services ofemployment recruiters as well The father had

a number of

interviews

throughout the northeast but was unsuccessful.

He also applied for employment at theInternational Paper Company

M i l l

in

TimndRrngf l^ PW

ork anri h a d ^ n p J n t . R K v i e j g L t b r e h] j i j i o4^^

Asthe father s unemployment benefits began

to

run out in January,

2013, the parties discussed the father slack

of

employment, that they were

runningout

ofoptions,

that he was not getting anywhere

w i th

obtaining

employment in this

area,

and that the father knew hecould

find

workin

Texas, where he

lived

before his enlistment and where his parents

presently reside. The mother insisted that the father not leave for Texas

toseek employment there un t i lafter T. s

first

birthday on February 17,

2013. She also encouraged him to seek employment outside of his

specialized

field of

training,such as byworkingat Walmart orMcDonalds,

even though his mi l i tary trainingqualified him for employment at a

significantly high salary level at which the

family

could be comfortably


4/20

Page

-4-

ecision and

Order

supported. No evidence was submitted that employment in an

unskilled

positionatWalmart, McDonalds, or any

similar

employer was available to

the fatherduringthe relevant times in

issue.

The father and the mother discussed his moving to Texas. The

mother knew that

i

he did move there and obtain a

job

that the father s

familywouldgive them land uponwhichthey couldbuild ahouse. The

mother admitted that she agreed to that situation but stated she did not

want

to move to Texas. Prior to the fatherleavingfor Texas on February

18,2013, the mother never told

h im

that she

would

not

go

to Texas under

any circumstances. Rather, the evidence clearly

establishes

that at the

timethe father

left

Hague,

New

York

on February 18, 2013 togoback to

Texas and obtain employment there, the mother had given him every

indication

that

i

he found a

job

there the mother and thechildrenwould

move to Texas even though that was not where the mother wanted to be.

Duringthe time that the parties, resided

wi th

the mother s parents, they

hadscant maritaldiscord,theonlydisputes being overfinancesand

living

inovercrowded conditions.

Uponarriving in Texas, the father moved inwi th hisparentsin

Elgin

Texas. With in approximately one month the father obtained a

job

as a

field

service engineer

wi th

Schneider Electric, a global energy

company, andtold the mother. When he

informed

the mother

of

his good

ihrtune^sheJjoldJiimJihat-shejsrauM

were thus

to

forego thejobin Texas and move back

to

the mother sparents

home

w i th

nojobprospectsor income. Recognizing his duty to support

and

provide

for

his

children,the father accepted the

job

wi thSchneider and

triedtoworkthings outwi ththe mother. Hesuggested that she and the

childrencome to Texas to check it out. The mother flatly refused.

The father wassent by his employer for training at its facilityin

Rhode Island

during

Ap r iland/orMay2014.

A t

about the

same

time,the

mother obtained employment as a steward in housekeeping at the

SagamoreResort inBoltonLanding, NewYork. Herworklocationis a 45

minutes drive one-way from her parents home. The father asked the

mother tobringthechildrenfor a weekend

visit

offeringto put her and


5/20

Page-5-

_

ecision andOrder

the children up at a hotel or motel and pay the travel

expenses.

The

mother refused, herexcusebeing that sheneeded

to

transport a co-worker

toworkand that she

could

notaffordthet r ip Noexcusewasprovidedby

the mother that the t r ipwouldnot be in the children'sbest interests.

Moreover, at that

time,

the father was

paying

the mother

child

support

o f

100 perweek,the mother admitted

having

take-home payfromher

job

of

200- 300 per week, and she was

l iving with

herparents so she had

minimal

l ivingexpenses.

The motherdidnot deny the father's testimony

that he offered to pay her travel andlodging

expenses,

or that she

asked

him i

her co-worker (Jeff)couldcometoo,onlystating that shecouldnot

recallone way or the other.

Once back in Texas, the father's employment was in the Houston

area

and he

secured

an apartment inthat

area.

He

gaveup

that apartment

once

he started paying 257.00 per week inchildsupport to the mother

and it was clear that shewouldnot move toTexaswiththechildren. The

fathermadeseveral efforts to convince the mother to come toTexasand

t ry

it

out for a couple

of

weeks, or a couple

of

months, or even

just

over the

Christmas 2013holiday period. The mother refused togobecauseshedid

not want to leave her

family

Although the mother testified that she

believed

that the fatherwouldrenegeon his

agreement

toallowher to go

back to New

York

i

i t

did not

work

out in Texas, the Court did not

find

this

testimony to be credible since no evidence was provided

from

which

any inference could be drawn that the father wouldprevent the mother

from

returning

toNew

York

w i ththechildrenor that he had theabilityto

do so. There wasnoevidence

of

anycontrollingor abusive behaviorbythe

father against the mother, other than her testimony that during his

military service he handled the finances when he was not on his ship.

Even that testimonyfails to establish any controllingbehavior by the

father inasmuch as the mother testified that they were experiencing

financial problems during that time and she was handling the finances

while

the father was deployed.

When

it

became

clear to the father that things did notworkout

between theparents,the father commenced an

action

fordivorceinTexas.

Upon

being served

w i th

those papers,the mother commenced a custody


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..

ecision and

Order

proceeding under the

Uniform

Child

Custody Jurisdiction and

EnforcementAct

(UCCJEA)

in theFamilyCourt

ofWarren

County, New

York where she was residing at that

time.

Subsequently, she moved to an

apartment in Ticonderoga,

Essex

County, New

York

and the

case

was

transferred to this Court. Similarly,the father filedhis own UCCJEA

custodypetitionw i ththe Warren County

Family

CourtinFebruary, 2014,

and thatpetitionwas also transferred to this

Court.

Whilethecaseswere

pending in Warren County Family Court, that Court conferred

with

the

Texas Court presiding over the divorce action and afterconfirmingtheir

jurisdictionover the custodyissues,itwas agreed between the courts that

the custody

issueswould

be heard in in New

York

rather than Texas.

Because

the mother is

living

in Ticonderoga, in

Essex

County, the

proceedings were transferred to this Court.

The father has attempted tomaintaincontactwi ththechildren.He

builta computer andsent

i t

to

the mother so that he

could

video chat

with

the children using Sk3 e or a similar service. The mother accepted the

computer but

complained

that shecouldnotaffordinternet service despite

earning

approximately 300

per

week

intake-home pay

plus

receiving 257

permonthinchildsupport

from

the father.

Meanwhile,

the mother

is

able

toaffordher cigarette habit, has no

childcare

expensesfor the children

since she

uses

her mother to watch the

children,

and her

parents

provide

foodfor thechildrenwhilein their care.

The children spend substantial time in thecareof the maternal

grandmother both when the mother isworkingand when the mother is

engaging in

off-work activities.

For the period of September 1-25, 2014,

the children hadspentup to 9 overnightswi ththe grandparents outofa

total

of24 days. The mother'sworkschedule includes every weekend and

atpresentis generally from 8:00 a.m. un t i l 4:00 p.m. Considering the

traveltime

of

atleast45 minutes to andfromwork,the mother drives the

children from her apartment in Ticonderoga to her mother's home in

Hague to drop the children off by approximately 7:00 a.m., and she

proceeds

from

there towork. She returns at approximately 5:00p.m.On

occasion she is required to be atworkby 5:30 a.m., and onthose daysthe

children

are leftthe previous night at the grandparents' home

in

Hague.


7/20

Page-7-

ecision and Order

When the mother is

working,

the grandmother

gets

the

child

J. on the

school bus in the morning and is responsible for being

present

when he is

returned later that afternoon. During holiday periods and the summer

months, she works aminimum

of40hours

per week.

The maternal grandmother not onlywatchesthe

three

subject

children and the mother's son J., but she alsotakes careof two other

female grandchildren who are 6 and 2yearsof age. When the children

arrive at her home, they remove

all of

their clothes except their underwear

and that is how theyspendtheir day. When inside the home, the children

watch

TV

or play

w i th

toys. Outside,thereis a trampoline without any

netting or fencing

to

prevent auser

from

falling

or being propelled

off

The

grandparents haveconsiderable property on whichthereis a barn and a

fenced-in pond. No evidence was submittedindicatingthat the children

are exposed to any type of age-appropriate educational media or

instructional activities(i.e.,reading, numbers,

etc.).

Moreover, the mother

failedto get the childrenG.and

I

enrolledinthelocalHeadstartprogram,

and had noreasonable excusefor such failure, herexcusebeing that her

workpreventsher

from

getting the children to and

from

theHeadstart

program in Ticonderoga.

The grandmother is overwhelmed by the responsibilities of caring

for

so many

young,

active

children.

Both twins are active , very busy

boys. On

September

3, 2014, the fouryearoldchild

I

left

her home

unnoticed, clothed only in his underwear, and walked down the long

driveway to a major two-lane highway and then approximately sixtenths

of

a mile to a local fire station. He was observed by fire department

personnel running around the parking lot at approximately 12:00 noon.

He had noshoesand was dirty He did not know his lastname. Hetold

the

EMT

who found

h im

that he was

goingto

get bubble gum at the store.

The Warren County

Sheriff

was

notified,

and 45 minutes to an hour later

a deputy

sherifftook

the childinto custody and eventually returned him

to the grandmother. The

response

of

the mother and the grandmother was

that the childwas at fault,therebeing testimony fromthe investigating

child protective services worker that both of them told her that the

children

knew the rules that they are not allowed to gopastthe woods or


8/20

Page-8-

ecision andOrder

the truck on the property.

Despiteknowingthat the

childrensufferfrom

respiratory problems

irritatedby cigarette smoke, and being advised by the children s doctor

that they should not be exposed to secondhand smoke, both the mother

and the grandmother smoke cigarettes around thechildrenthough theytry

to do soonlyoutdoors.

Noevidence was submitted regarding the mother s apartment in

Ticonderoga or of the activities inwhichsheengages

w i th

the children

when

she is not at work. She has had two romantic relationships in the

past

year or

so,

the last, one

terminating shortly

before

t r ia l .

I t

is

unknown

what

parental guidance she provides to the

children,

what ifany) efforts

shemakesto teach them appropriate behavior, whether shereads to the

children orexposesthem to age-appropriate educational materials and

content, or otherwise performs the duties ofa parent.

Significantly,

the

mother broke down intotearswhile testifyingthat when she was

living

with the father inVirginashefeltthat she was responsible too much

of

the

time

for

parenting thechildrendue

to

the father s deployments.Fromthe

credible evidence it is apparent that the mother has notbeenperforming

even theminimalduties of a custodial parent. Her desire to move

from

Virginia

to Hague,

New

York

was

i n

no

small

part

based

upon her mother

being available toassumea significant role in supervising the children.

Whjle the father was l iving with the rnother in Hague, he spent a

considerable amount

of

histimesearchingforemployment. The mother s

aversion to moving to Texas w i th the father and her use of the

grandmother as the primary child-rearing figure stem, at

least

in part,

from

her notwantingthe burden

of

acustodial parent.

The mother offered no explanation for

l iving

in Ticonderoga and

working 45 minutes away in Bolton Landing, and no evidence was

presented

of

her attempts to

find

workin Ticonderoga so that she could

parent the children and insure that they attended Headstart. Similarly,

she offered no explanation or evidence as to why she did not move to

BoltonLandingfor thesameresults.


9/20

Page-9-

ecision andOrder

B.

An ini t ia lcustodydetermination iscontrolled

by

the

best

interests

ofthe

child,

taking

into

consideration such factors as the parents' ability

to

provide

a stable home environment for the

child,

the

child's

wishes, the

parents'pastperformance,relativefitness,abilitytoguide and

provide

for

the

child'soverall well-being,

and the

willingness

o f

each

parent to foster

a relationship

wi th

the other parent

{seeMatterof Lynchv.Gillogly,

82

A.D.3d 1529, 1530, 920

N.Y.S.2d

437

[2011];Matter of Torkildsen v.

Torkildsen,72A.D.3d1405, 1406, 900

N.Y.S.2d

193

[2010]) {Rundall

v

Rundall86A.D.3d

700,701,927

N.Y.S.2d

414,416

[3d

Dept.,

2011]).

The

Court

must also consider 'the effect that an award of custody to one

parent

mighthave

on the

child's

relationshipwiththe other parent'

{Bliss

Ach,56

N.Y.2d

995, 998, 453N.Y.S.2d633,439

N.E.2d

349) {Youngv.

Young

212

A.D.2d

114, 118, 628

N.Y.S.2d

957, 960 [2d Dept.,

1995]).

Additionally, [t]he

Family

Court was required to consider the parties'

support obligations and their compliance

with

court orders

{Domestic

Relations

aw240[l][a][4] andtoevaluate

each

party's

ability

tosupport

the

child{seeEschbach

v

Eschbach,

56

N.Y.2d

167,172,451

N.Y.S.2d658,

436

N.E.2d

1260). {Wissink v. Wissink. 301 A.D.2d 36,

40-41,

749

N.Y.S.2d

550, 553

[2d

Dept.,

2002]).

Since the father is seeking custody here, the effects of

relocation

of

the

children

must be considered.

Consideration

of'whether the

relocation

ofthe

child

wouldnegatively affect the fundamental

right

ofreasonable

accessofthe parent

left

behind' clearly is essential{MatterofMessierv

Messier,supra,at 159, 638

N.Y.S.2d

242) {Bodrato

v

Bisgs.274A .D.2d

694,696, 710N.Y.S.2d470, 472 [3d Dept.,

2000]). [E]ach

relocation

request

must be considered

on itsownmeritswith

due considerationofall

the relevant facts and circumstances and

with

predominant

emphasis

being

placed on what outcome is most

likely

to

serve

the

best

interests of

the

child. While

the respective rights of the custodial and noncustodial

parents

are unquestionably significant factors that must be considered

{see,Strahlv Strahl, 66 A.D.2d

571,

414

N.Y.S.2d

184,

affd

49

N.Y.2d

1036,429

N.Y.S.2d

635, 407

N.E.2d

479,supra ,it is the rights and

needs

ofthechildrenthat must be accorded thegreatestweight,since they are


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Page-10-

ecision andOrder

innocent victims of their parents' decision to divorce and are the

least

equipped to handle thestresses

o f

the changingfamilysituation. (Tropea

Tropea. 87N.Y.2d727,739,642N.Y.S.2d575,580, 665N.E.2d145,150

[1996]). [ I ] n allcases,the courts should be free to consider and give

appropriate weight to all of the factors that may be relevant to the

determination.

Thesefactorsinclude,but arecertainlynotlimitedto

each

parent'sreasons

for seeking or opposing the move, the quality of the

relationships between the

child

and the custodial and noncustodial

parents, the impactofthe move on the quantity and

quality

ofthe child's

future

contact with the noncustodial parent, the degreeto which the

custodial parent's and child's

life

may be enhanced economically,

emotionally and educationally by the move, and the feasibility of

preserving the relationship between the noncustodial parent and child

throughsuitablevisitationarrangements (

Tropea. supra.,

at 740, 642

N.Y.S.2dat 581-582, 665N.E.2dat 151-152).

Additionally,

the parties'

agreed-upon geographical relocation restriction must factor into a

best

interest analysis [citation

omitted]

{Grathwol

v

Grathwol285A.D.2d

957,958, 727N.Y.S.2d825,827

[3d

Dept.,

2001]).

I nthe end,

i t

is for the

court to determine, based on all of the proof, whether it has

been

established by a preponderance

of

the evidence that a proposed relocation

wouldservethechild'sbestinterests[footnoteomitted] (

Tropea. supra. .

C.

The

children

hereare too

youngfor

their wishes to be considered or

given

any weight. In considering the

ability

of

each

party to provide a

stable home environment for the children, the Court ismindful that the

[c]hildrenneed a homebase. {Braiman

v

Braiman.44

N.Y.2d

584, 589,

407N.Y.S.2d449,451,378

N.E.2d

1019,1021[1978]).Forthesechildren,

that homebaseis the grandmother'shome,not the mother's apartmentfor

whichno evidence was presented. The father,who currentlyresides

w ith

his parents, has sufficientspacefor the children to reside

wi thhim

un t i l

he obtains his own residence. Both

parents

are employed, though the

father

earns

significantlymore than the mother. He has the financial

ability to obtain his own

residence

and provide a stable home for the

children.


11/20

Page-11-

Decision and

Order

The parties'

past

performance,

relative

fitness,

ability

to guide and

provide

for the child's

overall well-being,

and willingness to foster a

relationshipw i ththe other parent,

al l

favor the father. Here, the mother

reneged on her agreement to relocate to Texas i the father obtained a

job

in

that

state\g

spent many months seeking employment in the

Ticonderogaarea

and beyond

withoutsuccess,

the father

left

for Texas

withthe understandingfromthe mother that she and the

childrenwould

follow

h imthere i and when he obtained ajob. A tno time before he

left

forTexas or

prior

to his

obtaining

employment in Texas did the mother

informthe father that shewouldnot followthroughw i thher agreement

torelocate to Texas. The mother's reasonforrefusingtorelocatetoTexas

was

based

upon her personal desire to remain

w i th

her own

family.

Significantly,

the mother

didnot

consider the

best

interestsofthe

children,

and

noclaim

was made

by

her nor evidence presented at

t r ia l

that

it

would

not

have been in the

best

interests of the children to relocate to Texas

where the father was employed. By

putting

her own interests

ahead

of

those

ofthechildren,the motherdeprivedthechildrenof

a

family

unit

and

arelationshipw i ththe father.

[T]he right

to raiseone'schildrenand to

bewiththem,are'(r)ightsfar more precious than propertyrights' Mayv

Anderson, 345 U.S. 528, 533, 73 S.Ct. 840, 843, 97L.Ed.1221, supra).

Such

rights

are 'deemed essential '

Stanley

v

Illinois,

405

U.S. 645,651,

92S.Ct.

1208,31

L.Ed.2d

551

ciimgMeyerv. Nebraska,

262

U.S.

390,399,

43 S.Ct. 625, 67 L.Ed. 1042;

see, also. Planned

Parenthood

of Cent.

Missouri

V

Danforth,

428 U.S. 52, 90, 96 S.Ct. 2831, 49

L.Ed.2d

788

{Stewart,J . concurring)) {Entwistle

v

Entwistle.61

A .D.2d380,384,402

N.Y.S.2d

213, 215 [2d Dept.,

1978]).

Acustodialparent must be able . .

to place the children's

needs

before his[orher]

own

needs {Lichtenfeld

V Lichtenfeld.41A.D.Sd849,850,838

N.Y.S.2d

660,662

[2d

Dept.,

2007];

see,also,Lohmiller

v

Lohmiller140A .D.2d497, 528N.Y.S.2d586 [2d

Dept.,

1988];

Janecka

v

Franklin,

150

A .D.2d

755, 542

N.Y.S.2d

206 [2d

Dept.,

1989]).

A custodial parent must be able to place the

child'sneeds

The

mother s testimony that she wanted the father s job search to be within an

area

limited to one day sdrivingdistance from Hague, New

York

is belied

by

her

admission that she agreed that the father could look for work on east coast as far

away asFlorida,which is more than a one day drive.


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ecision and

Order

first

while

fostering a continued relationship between the

child

and the

noncustodial parent {Lohmillerv.Lohmiller 140A.D.2d 497, 498, 528

N.Y.S.2d586[1988]) {James JosephM.

v

RosanaR.32A.D.3d 725, 726,

821 N.Y.S.2d 168, 170 [ 1 ^ Dept., 2006]). [S]o jealously do the courts

guard the relationship between a noncustodial parent and hischild that

any interference wi th

i t

by the custodial parent has

been

said to be 'an act

so inconsistent wi th the

best

interests ofthe children as

to,

per se,

raise

a

strong

probability

that the [offending party] is

unfit

to act as custodial

parent.'{Entwistle

v

Entwistle 61A.D.2d 380,384-385,402

N.Y.S.2d

213

[RABIN ,J.],app. dsmd.44

N.Y.2d

851.) {Da^hirv.Daghir82A.D.2d

1 91 ,

194,441N.Y.S.2d494, 496,affirmed56N .Y.2d 938,453N.Y.S.2d609,439

N.E.2d

324

[1982]).

The mother unjustifiably interfered

wi th

the

children's relationship

wi th

the father. She hadnoreasonableexplanation

or

excuse

for

failing

and refusing to move to

Texas

wi th the father. Her

assertion that the father should

have

stayed and

accepted

employment at

McDonalds,WalMart

orsome

similar

low-wage

jobjustbecause

she wanted

to remaini n theareais

unreasonable.Both

parents

have

an

obligation

to

provide

the

best

life

possibleforthechildren,whichrequires that theyseek

employment commensurate wi th their talents and abilities.

The mother further interferedwith the children's relationshipwith

the father when she refused to bring the children to Rhode Island where

the father wasreceiving

training

for hisjob. Despite the father's offer to

pay the expensesfor travel, lodging and meals, the mother wrongfully

refused for the

reason

that she felt obligated to drive a co-worker

o f

hers

to

their workplace, theSagamoreResort inBoltonLanding, NewYo rk.

She

also

unreasonably refused to

bring

the

children

to

Texas

at Christmas

or for a couple of weeks to see i she and the children

would like

it there.

The mother's purported fear that shewouldnot be allowed to return to

NewYork

has no

basisin

the evidence att rial . Thus, the motherviolated

the rightso fthe children and the father to

visitation

wi th eachother. A

noncustodial parent is entitled to meaningfulvisitation,and denial

of

that

right

is so drastic that it must be

based

on substantial evidence that

visitationwouldbe detrimental to the welfare

of

the child {see Matterof

Sinnott-Turner

v

Kolba 60

A.D.3d

774, 775,875N.Y.S.2d

512;

Matterof

Morash

v

Minucci

299A.D.2d 486, 749

N.Y.S.2d889). {Lane

v

Lane

68


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ecision andOrder

A.D.3d

995,996-997,892

N.Y.S.2d

130,132 [2d

Dept.,

2009]). Visitation

isa

jo in t

rightofthenoncustodialparent andofthe

child

Weiss

v

Weiss.

52

N.Y.2d

170, 175, 436N.Y.S.2d862, 865, 418

N.E.2d

377, 380[1981]),

and thebestinterests ofa

child

lie in [her] being nurturedandguided by

bothof [her]

natural parents Dagliir v Daghir.

82 A.D.2d

191,193, 441

N.Y.S.2d494,

496,

afiirmed56N.Y.2d

938, 453

N.Y.S.2d609,

439

N.E.2d

324

[1982]).

The development of a meaningful, nurturing relationship

between a noncustodial parent and his or her

child

requires that

visitation

must be frequent and regular Baghir v Dagliir.id.).

The mother alsowrongfullyrefused to arrange for internet service

to her apartment so that the father andchildren

could

communicatewith

each otherv iavideochat, such as

Skype.

The father has beenmakinghis

child

support payments

of$257.00

per

week,

and the mother has

sufficient

financialmeans

to pay for internet service. He also gave the mother a

computer to facilitate such contact. Yet, there was no evidence of any

effort,

or

inclination,

on her part to have the

children

communicatewi th

the father by such

means,

or any other

means.

Since the father's

relocation,

the mother has chosen to

utilize

the

maternal grandmother as her surrogate.

The

mother provides

no

parental

guidance or

modeling,

she has

not providedfor their

education, and has

left

i t to the maternal grandmother to be the primary caregiver for the

children.

This,

along w i th the mother's testimony that she

found

it

difficult to

care

for the childrenwhilethe father was at sea during his

naval

career,

and that she wanted to stayinthe Ticonderogaarea because

her familywas there, establishes to this Court that the mother is

simply

not

prepared or interested

in

being the

primary

parent and caregiver for

the

children.

She made

noreasonableeffort to

have the

twoolderchildren

enrolled

in any educational program and,

disturbingly,

the

four

year

old

child

I was unable toprovidethe emergency personnel at the

f i re

station

w i thhis real

f i r s t

or last name. There was no evidence that the mother or

grandmother read to the

children

or exposed them to any age-appropriate

educational andcharacter-buildingmaterials or

information.

Based upon

the credible evidence, the children's liveswil lbe

significantly

enhanced

economically,emotionallyandeducationallybythemove.The father will


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ecision and

Order

provide

the parental guidance,

nurturing

and support that the children

need. H e w i l linsure that the children's educationalneedsaremet He has

the financial abil i ty to provide for the children'sneeds. An award of

custody to the father w i l l most l ikelytoservethebestinterests of the

children.

ThisCourt recognizes that the award

of

custody

o f

the children to

the father w i l lbe disruptive and possibly confusing to thechildren,and

w i l lsubstantiallychangethe dynamicso fthe children's relationshipw i t h

the mother. That achangein custody may provetemporarilydisruptive

to the children is not determinative, for all

changes

in custody are

disruptive {Nehrav Uhlar 43N Y 2d242, 249, 401N.Y.S.2d168, 171,

372N.E.2d4, 7[1977]). There was

l i t t l e

evidence that thechildrenhave

a close relationship

w i t h

the mother, l ikely due to the maternal

grandmother's substantial assumption

o f

the parenting duties. Thequality

and quantity of actual time

spent

by the children

w i t h

the mother is

unclear. However, the evidence did show that thechildrennot

only

spend

most of their days w i t h the maternal grandmother but a number of

overnights per week asw e l l Whilethere w i l lcertainlybeanegative effect

upon the relationship between thechildrenand the motherbyan awardo f

custody to the father, the effect can beminimizedto the extent possible by

affording

the mother the

right

to

visi t

and communicate

w i t h

the

children

i n

Texas, as

w e l l

as

engage i n

significantvisitation

w i th

them throughout

the yearherein New

Yo rk

Although there wasscantevidence of the

relationship between thechildrenand their

half-sibling,

anydisruption of

those relationships w i l l similarly be assuaged by the

visitation

arrangements. Moreover,whilethe quantityoftimebetween the mother

and thechildrenw i l lcertainlydecrease,the

quality hopefully

w i l limprove

by the change.

However, for thereasonspreviously mentioned in this decision, it

is in the children'sbestinterests that custody be awarded to the father.

Theirlives

w i l l

be enhanced by thechangeof custody as the father

w i l l

performhis role as parent, the

children w i l l

beprovided

w i th

appropriate

education and parental guidance, and they

w i l l

be in a stable, nurturing

environment. As between the mother and father, the children's

best


15/20

Page-15-

ecision and

Order

interests w i l lbe

optimally

promoted

by

an award

o f

custody to the father.

Since

the

relationship between

theparents is

strained,

and due to the

geographical distance between them,

an

awardo f

sole

legal custody must

be made.

D.

The father s

petition

for

custody

is

granted. The mother s

petition,

insofarassheseeks an awardoflegal and

physical

custody ofthechildren,

isdenied. By

reason

o fthe

forgoing,the

rightsoftheparents to custody

ofand

visitation

w i th

the

children

are as

follows:

1.

Sole legal custody ofthe

children

is awarded to the father.

2.

Primary

physical

custody ofthe

children

is awarded

to the

father,

and transfer

of

custody should take place

no

later than Friday,

November28,

2014

at

or before 12:00 noon,

easterntime.

3.

The

mother shall

have

reasonable and liberal

parenting time

(visitation)

w i th

the

children

as

follows:

A)

in

odd-numbered years,

the

mother shall have

parentingtimew i ththechildren:

(1)

during

the

children s November school

recess

for

the

Thanksgiving holiday, from

the

Wednesday

immediately prior

toThanksgiving

Dayu n t i lthe

Sunday immediately thereafter,

provided

that

the

children arrive

at

their

respective airport destinations

not

later than

5:00

p.m.

on such days;

and

(2)

during

the

children s

February

school

recess

for

President s

week, from

the

Sunday

immediately fo l lowing the

beginning

of the

schoolrecessun t i l the

Saturday immediately


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Page-17-

ecision and

Order

the mother s parenting time shall conclude no later

than the earlier of one week before summerrecess

endsorfallschool activities (i.e., sports) begin; and

D) provided that the mother gives the father atleast ten

(10)days notice, the mother

shallhave

parentingtime

as agreed between the parties whenever she shall be

with in one hundred (100) miles of the children s

primaryresidence, wi thsuch parentingtimeto occur

with insuch geographical areaaslongas thechildren

do not miss school or other previously scheduled

school or extracurricular

activities;

and

(E)

such other an different times as the parties may

mutually

agree.

4. Al l airfare transportation expenses for the children under

paragraphs3 A ), B)and (C) shall be shared by the parties in the

sameproportion aseach parent sincomebears to the combined

parental income to the sameextent as such amounts are to be

determined for child support purposes. Such amounts may be

determined

in

an appropriate proceeding for

child

support, and the

samemay be collected and enforced

in

thesamemanner and to the

sameextent as

child

support,

including

but not

limited

to

providing

for the

collection

and enforcement thereof

through

the applicable

child

support

collection

units

of

the respectivejurisdictions. Each

party shall be solely responsible for travelexpenses from their

respective residences to the nearest public airport from which

airline service is available to the public airportnearest the other

parent sresidence. Each parent shall use his/herbest efforts to

secureairline

ticketsfor

the

children

at the lowest possible cost. No

child

under thirteen (13) years of age shall travel on any airline

unaccompanied

by

a parent or other adult

(one

adult can accompany

a ll

or more than one

of

thechildren), and the travel

expense

for a

party or other adult to accompany thechildren onanyflightshall be

paid by the party travelingwith the children or arranging for


18/20

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Decision and

Order

another adult to do so,

wi th

each

parent being responsible for the

childrento be accompanied on the flight to their respective home

airport.

5. The children shall

have

one telephone callor video chat with the

mother and theirhalf-sibling

J.

on Sunday, Tuesday and Thursday

of

each week when they are physically

wi th

the father, the same to

occur between 6:30 p.m. and 7:00 p.m. central time. When the

children

are

wi th

the mother, they shall beentitledto telephone or

video

chat

w i th

the father every other day between 6:30 and 7:00

p.m.

central

time. Nothing

herein

shall prohibit

either parent from

allowing

the children to telephone or video chat

w i th

the other

parent orwi ththeirhalf-siblingJ. at other times when thechildren

so desire.

6. Theparents shall cooperate inarranging

for

visitationbetween the

children

and theirhalf-siblingJ.when the mother is

exercising

her

parenting time and at otherreasonable times.

7. Each parentshall: A)

have

complete and unrestrictedaccess to all

health care and educational records, information, providers and

personnel

involved

wi th

the health

care

and/or education of the

children, except for that which is protected by a right of

confidentiality infavor

of

thechildren; B)sign any and

a ll

releases

or

other documents necessary to permit the other to have such

access;

and(C) belisted

with all

healthcare and education providers

as theprimaryparties to be contacted inthe eventofan emergency

and to receive

a ll

records and

information

fromsuch providerswith

respectto the said children.

8. The parties shall comply

wi th

and follow all treatment

recommendations made by the children s health

care

(medical,

behavioral, dental, etc.) providers.

The

mother

shall

not

seek

health

careforthechildren

without

the father s

prior

consent excepti nthe

caseof an emergency, and in such event she shall immediately

notify the father who shall, in consultation wi th the attending


19/20

Page

-19-

ecision and Order

health

care

providers,

determine

the

appropriate

care

and

treatment

ofthe children.

9. Neither party shall use or

consume

tobaccoproductsinthe

presence

ofthe children, nor shall they

expose

the children to

secondhand

smokei n

thehome,car orother place,nor shall they

allow

any

third

party to do so.

10. Eachparent:

A) shall

keep

the

other

informed of their current

residenceaddressandtelephone numbersat

all

times;

and

B) shallspeakinpositivetermsabouttheotherparenti n

the

presence

or hearing of the children, andensure

that th i rdpartiesdo so as

well;

and

C) shall

encourage

and promote a feeling of love,

affection and respectbetweenthe children and the

otherparent;

D) shall

encourage

and promote the free exerciseof

visitationand custodial rights

of

the

other

parent

with

the children; and

E)

shall immediately

notify

the

other

in the

event

of

any

serious

illness of, or injury to, the children while in

their

care,

aswellas

plans

for medical, mental health,

and dental examinations and/ortreatment;and

F) shall administer any and

a ll

medications prescribed for

the children while in theircare;and

G) shallengagein and maintain

reasonable,

respectful,

courteousand adult communication wi theachother

regarding the children; and

H) shall maintain free accessand unhampered contact

betweenthe children and theotherparent;and

I)

shall not

discuss

any adult

issues

wi th

the children,

including but not l imited to court proceedings,

custody,

visitation orchild

support;

and

J) shall not say or do anything that may alienate the


20/20

Page

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Decision andOrder

child from the other parent, injure the children s

opiniono f

the other parent, or in any way impair the

children s love, affection or respect for the other

parent, norshall either parentallowany t h i rd party to

doSO:

11. This Court

does

not retain exclusive,continuing

jurisdiction within

the meaningof the

UCCJEA,

and a court of another

state

otherwise

havingjurisdiction

under the

UCCJEA

may

modify

and/or enforce

the provisionso f

this

decision and order.

It

is soordered

E N i E R '.'''l' ' '''- '' ^ \

Hon

RichardB

Meyer

h^i V cmm j

PUR SUAN T TO SECTION 1113 OF THE FAMILY COURT

ACT, AN APPEAL FROM THIS ORDER M UST BE

TAKEN W ITHIN 30 DAYS OF RECEIPT OF TH E ORDER

BY APPEL LANT IN COURT, 35

D YS

FROM TH E DATE

OF MAILING

OF

THE ORDER TO APPELL ANT BY THE

CLERK OF COU RT, OR 30 DAYS AFTER SERVICE BY A

PARTY ORTHE ATTORNEY FOR THE CHILD UPO N

THE APP ELL ANT , WHICHEVER IS EARLIEST.

Checjjrapplicable box: O \ \\

5P5rder mailed on [specify date(s) and to whom mailed]:_il. O t M i X l ^ ^

Orderreceived in court on [specify date(s)andto whom given]:

cc: DebraA .

Whitson, E s q .

v

Er inE. Hayes, Esq.

"^X

^p U 31|

David E. Rudgers, Esq. ^

Amanda

James

father awarded sole custody

Documents