D.D. v. R.M., V-0000-00/00X

CourtNew York Family Court
Writing for the CourtConrad D. Singer, J.
PartiesIn the Matter of a Proceeding Under Article 6 of the Family Court Act, D.D., Petitioner, v. R.M., Respondent.
Docket NumberV-0000-00/00X
Decision Date10 January 2022

2022 NY Slip Op 50123(U)

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

R.M., Respondent.

Docket Nos. V-0000-00/00X, V-0000-00/00X

Family Court, Nassau County

January 10, 2022

Unpublished Opinion

Sari Friedman, Esq., and Jennifer Moran, Esq., Attorneys for Petitioner, D.D.

Karen Charrington, Esq., Attorney for Respondent, R.M.

Patricia Sokolich, Esq., Attorney for Child.

Conrad D. Singer, J.

The following papers were read on these Motions:

Respondent's Motion by Order to Show Cause and Supporting Papers...............1

Petitioner's Affidavit in Opposition to Respondent's Order to Show Cause and Supporting Papers...............2

Attorney for the Children's Affirmation in Support of Respondent's Notice of Motion and Opposition to Petitioner's Notice of Cross-Motion...............3

Before the Court in these custody and parenting time proceedings is the respondent father's motion filed by Order to Show Cause, which seeks an Order: 1) Holding the petitioner mother in contempt of court pursuant to Judiciary Law § 753 for violating the Court's August 9, 2021 order and August 12, 2021 amended order, and issuing a penalty and punishment that, per counsel, is "severe enough to deter the petitioner's conduct and remedy the prejudice caused by the petitioner"; 2) Issuing immediate relief to the respondent father by awarding him temporary custody of the children pending any hearing or further proceedings before this court pertaining to the parties; or, in the alternative; 3) Issuing immediate relief by awarding the respondent father makeup time visits with his children by way of consecutive day to day visits until the petitioner mother has made up all of the parenting time pending a determination of the Court as to any and all applications before the Court pertaining to the parties in this matter; 4) Transferring full custody of the parties' children to the respondent father, after a final determination of this court, based upon a change in circumstances in light of a contempt finding and the harm caused to the respondent father and the children due to the petitioner mother's [alleged] acts, alienation and interference with the respondent father's access; 5) Issuing an award of attorney's fees for costs incurred by the respondent father pursuant to Judiciary Law § 773.

The petitioner mother, through counsel, filed opposition papers to the respondent father's Contempt Motion by Order to Show Cause. The Attorney for the Child filed an Affirmation in Support of the Respondent's Contempt Motion by Order to Show Cause and Opposition to the Petitioner's Notice of Cross-Motion. [1] The father, through counsel, filed Reply papers, but did not obtain Court permission before doing so, and the Court did not consider said Reply papers in deciding his Contempt Motion. [2] The respondent father's Contempt Motion is determined as follows:

The father's Contempt Motion includes a supporting affirmation from his counsel. As counsel acknowledges, there is already a contempt proceeding that is pending before this Court and which is scheduled for hearing on January 19 January 20, January 21, January 24, January 25, January 26 and January 27, 2022. (See Affirmation in Support by Karen Charrington, Esq., on Contempt Motion Filed Under Docket Numbers V-0000-00/00X and V-0000-00/00X ["Charrington Aff. in Support"], ¶ 3). The father's counsel contends that his Contempt Motion differs from the previously scheduled contempt proceedings which were commenced by Contempt Motion filed by the Attorney for the Children ["AFC"]. (Charrington Aff. in Support, ¶ 4). Counsel for the father cites to the Court's Short Form Order dated August 9, 2021, which is attached to her Supporting Affirmation and which provides as follows:
"ORDERED that until further order of this court all pickup and drop-off of the children for parenting time shall be at McDonald's located at 000 F.A., F.S., NY". (Charrington Aff. in Support, ¶ 8, Exhibit A thereto).

The father's counsel also cites to this Court's August 12, 2021 Amended Order, appended to her Supporting Affirmation as Exhibit A, which provides as follows:

"ORDERED that until further order of this court all pickup and drop-off of the children for parenting time shall be at McDonald's located at 000 F.A., F.S., NY, unless otherwise agreed to by the parties in a future writing.
ORDERED that neither party shall bring a third party or be accompanied by a third party or permit a third party to be present for the pick up or drop off exchanges of the children. (Charrington Aff. in Support, ¶ 8, Exhibit A thereto).

The father's counsel argues that the elements of a civil contempt proceeding have been satisfied, in that:

"(1) the court unequivocally outlined the terms of the order on the record on August 9, 2021 when the Petitioner was physically present The Court then mailed said order to the parties. In addition, the court issued an amended order on August 12, 2021 and said order was emailed to the parties. Said orders were in effect for all visits moving forward. Furthermore, Petitioner agreed to the new drop off location and was given a choice as to the most convenient location for her; (2) Petitioner disobeyed the order by refusing to 'drop off' the children at the designated McDonalds; (3) the Respondent has stated the prejudice to him as a father. He has been prejudiced by the ongoing contumacious conduct of the Petitioner because the Petitioner has infringed upon the Respondent's rights as a parent; the bond between Respondent and his children has been wrongfully impacted; and he has missed valuable visitation time with his children". (Charrington Aff. in Support, ¶ 26).

The father's counsel further argues that a fact-finding on his Contempt Motion is not necessary because there can be no dispute that the Petitioner refused to "drop off" the children at McDonalds, but that even if a fact-finding is necessary, it is customary for the Family Court to issue an order of makeup parenting time to the non-custodial parent without a hearing. (Charrington Aff. in Support, ¶¶ 31 and 32). The father's counsel further asserts that under New York law the father is entitled to $2, 800.00 in costs and fees that he incurred by prosecuting his contempt application. (Charrington Aff. in Support ¶ 33).

The father's Contempt Motion also includes the father's Affidavit of Support, in which he attests that "on the first date" of his access schedule after the August 9, 2021 order, the mother arrived late to McDonalds (3:06 PM instead of 2:15 PM), and that she entered the McDonalds with the children, ordered food and sat at a table with the children. (Affidavit of R.M. in Support of Contempt Motion, dated November 3, 2021 ["M. Aff. in Support"] ¶ 4). He further attests that the mother did not leave once he entered the McDonalds, but instead sat at a table with their children. (M. Aff. in Support, ¶¶ 5 through 7). His motion papers include a photograph which he affirms shows her sitting with the children. (M. Aff. in Support, ¶ 7, Exhibit ["Ex."] D thereto). He further attests that when he attempted to take his children with him, the parties' children looked at their mother, and then turned to him and stated, in sum and substance, that they would get in trouble if they left with him, and that the parties' daughter stated, "I can't go to your house". (M. Aff. in Support, ¶ 8).

The father also details that on the next access schedule date following the Court's issuance of an Amended Order dated August 12, 2021, the mother drove up with the children tightly seat belted in the back seat with a blanket covering their legs and seatbelt. (M. Aff. in Support, ¶ 18). He further attests that, as instructed by his attorney, he went over to the mother's car to take the children out of her vehicle and that as soon as he touched their daughter's hand, the mother started yelling "Is he hurting you? Is he hurting you?" and their daughter started screaming. (M. Aff. in Support, ¶¶ 21 and 22). The mother called the police, who then came to the scene but left without taking...

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