Andres Q. v. Letiticia Y.A.
| Decision Date | 18 November 2022 |
| Parties | In the Matter of a Proceeding Under Article 6 of the Family Court Act, Andres Q., PETITIONER, v. Letiticia Y.A., A/K/A LETITCIA Y.R., RESPONDENT. |
| Court | New York Family Court |
Unpublished Opinion
Gabriella MacDonald, Esq., for Andres Q.
Laura A. Vanderbrook, Esq., for Letiticia Y. A. a/k/a Letitcia Y R.
Katie E. Woodruff, Esq., Attorney for the Child
DECISION AND ORDER
This case addresses several orders to show cause and petitions filed between Andres Q. (Father) and Letitcia Y. A. a/k/a Letitcia Y. R. (Mother) over approximately two years, concerning the only child of their acrimonious relationship, Meleiah Q. (DOB: XX/XX/2013). The Court finds a change in circumstances necessitating a new order of custody. Father established Mother's violations but circumstances militate against Mother serving time in jail [1]. The Court entered a temporary order on May 6, 2021 granting the parties alternating weekly parenting time with Meleiah. This schedule shall continue. The parents shall share joint custody and shared residency with each parent exercising designated spheres of influence.
The parties had three prior orders of custody regarding Meleiah. The first two were entered upon the parties' consent on July 10, 2015 and November 27, 2017 respectively before Family Court Referee Thomas W. Polito. The parties agreed to joint custody with Mother having primary physical residency and Father having three to four unspecified periods of residency a week, and thereafter, Father's parenting time with Meleiah increased to include Monday, Wednesday and Friday from after daycare or school until 8:00 p.m., and alternate weekends from Friday until Sunday.
Subsequently, upon Father's default, this Court on January 11, 2019 granted Mother sole custody and primary physical residency. Father continued his alternate weekends with Meleiah, but forfeited his weekday visits.
On May 23, 2019 Father filed a petition seeking to both resume joint custody and increase parenting time with Meleiah. A trial ensued and before this Court rendered a written decision Mother filed an order to show cause and petition on January 31, 2020, seeking to restrict Father to supervised visits. Mother alleged Father both told Meleiah that Mother does not love her and instructed her to harm Mother, by throwing things at her. The Court denied any interim relief. A few days later, on February 3, 2020, Father filed a violation petition alleging Mother without explanation refused him his scheduled weekend visitation.
On July 13, 2020 Mother by order to show cause alleged Father sexually abused Meleiah. This Court pursuant to Family Court Act §1034 ordered Monroe County Child Protective Services to investigate Mother's allegation of sexual abuse and restricted Father to supervised visits on the next court appearance. On February 17, 2021 Father filed a violation petition alleging Mother had denied him any access to Meleiah.
On April 19, 2021 Father filed an order to show cause and a violation petition based on Mother's continued denial of his supervised visitation. Mother purportedly traveled with Meleiah out of state for a school break and failed to return the child.
At an appearance on April 22, 2021, the Court warned Mother that it would both issue a writ of habeas corpus for the child's return to Father and an arrest warrant for Mother, if Meleiah was not returned.
Mother eventually complied with the Court's directive. This Court entered a Temporary Order of alternating unsupervised residency with Mother and a week of unsupervised residency with Father on May 6, 2021 (the "Week to Week Order"), which continues today.
On December 21, 2021 Mother filed an order to show cause for specified holiday relief which was addressed by the Hon. Alecia J. Mazzo, the Part 1 Judge.
Since entry of the 2019 default order both parties agree that there is a "'change in circumstances which reflects a real need for change'" (Matter of James D. v Tammy W., 45 A.D.3d 1358 [4th Dept 2007], quoting Matter of Amy L.M. v Kevin M.M., 31 A.D.3d 1224, 1225 [4th Dept 2006] ). Based on Mother's allegation of sexual abuse and her withholding Father's visits the Court finds there is a sufficient change of circumstances to warrant modification of the Court's prior order (cf. Cowell v Pembrock, 113 A.D.3d 1118 [4th Dept 2014]) see also Matter of Higgins v Higgins, 128 A.D.3d 1396 [4th Dept 2015]).
A protracted trial spanned nine days over the course of thirteen (13) months (due in part to Covid-19 restrictions and scheduling limitations of all counsel). The Court held trial both virtually and in person. Opening statements were waived and the trial began with an order of sequestration on May 26, 2021 [2]. The Court determined it would take judicial notice of any and all prior testimony from the Court's earlier trial upon submission of a transcript.
The Court heard testimony from nine witnesses. For Father's case in chief, witnesses included Emanuel Petracca (expert witness), Reverend Herman A., Jr. (maternal grandfather) Rebecca O. (paternal grandmother and supervisor of Father's visits), and Father. Mother's witnesses were Nadia K. (Father's former live-in girlfriend and the mother of Blake S. (DOB:12/7/2012)), Christopher S. (Monroe County Road Patrol Deputy), Jennifer P. (therapist from Mt. Hope Family Center), Kara L. (Mother's close friend) and Mother. The Court finds both Father and Mother had gaps in credibility and found witnesses Emanuel Petracca, Herman A., Jr., Christopher S. and Jennifer P. to be credible. The remaining witnesses demonstrated a strong bias toward or against each parent and thus, the Court gave less weight to their testimony (see Matter of Louise E.S. v W. Stephen S., 64 N.Y.2d 946, 947 [1985] []; see also Hendrickson v Hendrickson, 147 A.D.3d 1522 [4th Dept 2017]; and see Matter of Cross v Casewell 113 A.D.3d 1107 [4th Dept 2014]).
The Court received into evidence thirty-nine (39) exhibits and carefully reviewed each piece of evidence: Petitioner's Exhibit 1 - Emanuel Petracca's Curriculum Vitae Petitioner's Exhibit 2 - Emanuel Petracca's Assessment and Treatment Plan for the child, Meleiah Q., dated January 21, 2021; Petitioner's Exhibit 3 - photograph of child with Father's cousin's child, Kaylani, eating popcorn; Petitioner's Exhibit 4 - photograph of Father and child sticking their tongues out; Petitioner's Exhibit 5 - photograph of child with some of her young paternal relatives; Petitioner's Exhibit 6 - photograph of Father and child; Petitioner's Exhibit 7 - photograph of child with two of her young paternal relatives; Petitioner's Exhibit 8 - photograph of child eating a meal; Petitioner's Exhibit 9 - photograph of child on sliding board; Petitioner's Exhibit 10 - photograph of child on monkey bars; Petitioner's Exhibit 11 - photograph of child on her bed at Father's house with her stuffed animals; Petitioner's Exhibit 12 - photograph of child holding a bread stick at Olive Garden; Petitioner's Exhibit 13 - photograph of Blake S. (Nadia K.'s son) and Meleiah watching Father and Nadia K. assemble a gingerbread house; Petitioner's Exhibit 14 - photograph of Blake S. and Meleiah playing at a park; Petitioner's Exhibit 15 - photograph of Blake S. and Meleiah at Dave and Buster's restaurant; Petitioner's Exhibit 16 - photograph of Nadia K.'s niece, her son Blake S., Meleiah, Father and Nadia K. at an indoor pool; Petitioner's Exhibit 17 - photograph of Blake S. and Meleiah in a children's playhouse in a Target store; Petitioner's Exhibit 18 - photograph of Blake S. in a Spider-Man mask and out with Meleiah at Father's house; Petitioner's Exhibit 19, photograph of a video taken on November 3, 2018 with Nadia K.'s right arm forming fist; Petitioner's Exhibit 20 - photocopy of Nadia. K.'s telephone number; Petitioner's Exhibit 21 - photocopy of witness Nadia K.'s text message and a picture; Petitioner's Exhibit 23 - flash drive containing three videos - 23A, B and C ; Petitioner's Exhibit 25 - order of protection with maternal grandfather, Herman A., as protected party against Mother; Petitioner's Exhibit 26 - certified transcript of prior trial testimony taken on December 23, 2019; Respondent's Exhibit D - image of mix tape cover of Father with another man pointing gun; Respondent's Exhibit E also received as Respondent's Exhibit Q - copy of a photograph of Father at a gun range; Respondent's Exhibit F - copy of photograph of Mother with Meleiah with birthday cake in the background; Respondent's Exhibit G - copy of photograph of Mother with Meleiah; Respondent's Exhibit H - copy of photograph of Mother and Meleiah with face masks; Respondent's Exhibit I - copy of photograph of Mother with Meleiah; Respondent's Exhibit J - copy of photograph of Meleiah hugging life size Sesame Street character, Elmo; Respondent's Exhibit K - copy of photograph of Meleiah in front of Sesame Street character, Big Bird; Respondent's Exhibit L - copy of photograph of Mother, Meleiah and Mother's adult son from a previous relationship, Jarron; Respondent's Exhibit M - copy of photograph of Meleiah with Jarron; Respondent's Exhibit N - copy of photograph of Meleiah with Jarron; Respondent's Exhibit O - copy of photograph of Mother, Jarron and Meleiah in a car; Respondent's Exhibit P - picture of Father and a friend on vacation in Atlanta in...
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