G.D. v. D.D.

• Citation: 43 N.Y.S.3d 767 (Table)
• Decision Date: 10 June 2016
• Docket Number: No. XX/0616.,XX/0616.
• Parties: G.D., Plaintiff, v. D.D., Defendant.
• Court: United States State Supreme Court (New York)

43 N.Y.S.3d 767 (Table)

G.D., Plaintiff,
v.
D.D., Defendant.

No. XX/0616.

Supreme Court, Westchester County, New York.

June 10, 2016.

Brett Kimmel, Esq., New York, for Plaintiff.

Howard P. Roy, Esq., Cohen Clair Lans Greifer & Thorpe LLP, New York, for Defendant.

Michele L. Bermel, Esq., Chappaqua, for the Children.

LINDA CHRISTOPHER, J.

This matter came before the Court for trial after determination of a motion brought by the mother on March 16, 2015 seeking to modify a Custody and Parenting Agreement dated August 20, 2014. Plaintiff requested the following relief:

1. Modifying the so ordered Custody and Parenting Agreement dated August 20, 2014 so that:

a. Plaintiff is awarded sole legal custody of the parties' children, to wit: T., born –––– ––––, 2008; and E. born –––– –––– 2011; and

b. Modifying the current custody agreement so that the defendant has parenting time with the children on alternating weekends commencing Friday at 6:30 p.m. and continuing until Sunday at 5:30 p .m. with one (1) mid-week visit dinner with the children at 5:30 p.m. with the defendant being responsible for the costs associated with transporting the children to or from Manhattan, including the costs of any childcare hired for the purpose of escorting the children in the event the defendant does not wish to pick them up from their residence in Westchester County, New York; and

2. Granting plaintiff such other, further, and different relief as the Court may deem just and proper.

Defendant father cross-moved for relief as follows:

1. Denying plaintiff's motion to modify the parties' so ordered Custody and Parenting Agreement dated August 20, 2014 (the "Agreement");

2. Appointing a parenting coordinator, payment of such to be shared equally by the parties, to assist the parties in implementing the terms of their Agreement;

3. Clarifying paragraph 25 of the Agreement which requires the parents "to modify the schedule so that neither parent has three weekends in a row unless otherwise agreed" for the summer or in other circumstances in which it is not reasonably feasible to preserve defendant's parenting time under the Agreement;

4. Granting defendant parenting time from July 24–26, 2015, July 31–August 2, 2015, and having vacation time with the children from August 7–August 16, 2015;

5. In the alternative, should the relief above not be granted:

a) Modifying the parenting time schedule in the Agreement so that, over a span of eight (8) weekends, the children shall be with the Father on weekends 1, 3, 4, 6, and 7, and the children shall be with the Mother on weekends 2, 5, and 8;

6. In the alternative, should plaintiff's motion not be denied;

a) Directing the appointment of a forensic psychiatrist or psychologist to evaluate the parties and their children and submit to the Court a report as to the evaluator's assessment of each parent's ability to make appropriate decisions for the children, as well as any risk factors which may impact on the residential arrangements;

b) Directing that the parties equally share the cost of such forensic psychiatrist or psychologist;

c) Directing that there be an evidentiary hearing with respect to the issue of legal and physical custody of the parties' children;

7. Granting defendant such other and further relief as this Court determines is just and proper.

The Court issued a Decision and Order dated, June 16, 2015 wherein the matter was set down for hearing.

The Proof

When the parties appeared for trial, the Court advised that it would decide first if the mother proved that there had been a sufficient change in circumstances to warrant change in the custodial arrangement to ensure the continued best interests of the children and, if so, what custodial arrangement would serve the children's best interests.

The father claimed in his responsive papers to the mother's original motion and subsequently throughout the hearing that there was an insufficient basis upon which to modify the custodial agreement. He basically argued that the parties did not work well together before they signed the custodial agreement and that their relationship after the signing of the agreement was not so different and hence there was an insufficient basis to warrant a modification.

There are a host of decisions that favor leaving agreements in place. This encourages parties to settle their differences, with the knowledge and assurance that the resulting agreement will not be easily undone.

Where parents enter into an agreement concerning custody, "... it will not be set aside unless there is a sufficient change in circumstances since the time of the stipulation and unless the modification of the custody agreement is in the best interest of the children" (Matter of Gaudette v. Gaudette, 262 A.D.2d 804, 805, 691 N.Y.S.2d 681 ; see Matter of Joseph F. v. Patricia F., 32 A.D.3d 938, 939, 821 N.Y.S.2d 625 ; Smoczkiewicz v. Smoczkiewicz, 2 A.D.3d 705, 706, 770 N.Y.S.2d 101 ; see also Kollmar v. Kollmar, 100 A.D.3d 712, 953 N.Y.S.2d 876 ). When making such determinations, a court "must consider the totality of the circumstances" (Matter of Chery v. Richardson, 88 A.D.3d 788, 788, 930 N.Y.S.2d 663 [internal quotation marks omitted]; see Eschbach v. Eschbach, 56 N.Y.2d 167, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ; Matter of Solovay v. Solovay, 94 AD3d 898, 899 N.Y.S.2d 712).

Anonymous 2011–1 v. Anonymous 2011–2, 102 A.D.3d 640, 641, 958 N.Y.S.2d 181 (2nd Dept.2013).

However, courts are vested with the authority to determine if matters between the parties have changed to such a degree that the facts support a modification of the agreement. In doing so, the Court should conduct a hearing.

A party seeking a change in custody is entitled to a hearing where the movant has made an evidentiary showing of "a sufficient change in circumstances demonstrating a real need for a change of custody in order to insure the [children's] best interests" (Matter of Nava v. Kinsler, 85 A.D.3d 1186, 1186, 926 N.Y.S.2d 310 ; see Sirabella v. Sirabella, 95 A.D.3d 1296, 944 N.Y.S.2d 896 ; Matter of Dorsa v. Dorsa, 90 A.D.3d 1046, 1046, 935 N.Y.S.2d 343 ).

Id. at 641, 958 N.Y.S.2d 181. Also, see, Nussbaum v. Nussbaum, 106 A.D.3d 791, 791, 964 N.Y.S.2d 628 (2nd Dept.2013).On June 16, 2015 this Court issued a decision regarding the original motion and cross-motion as follows:

Based on the foregoing, plaintiff has made an evidentiary showing of "a sufficient change in circumstances demonstrating a real need for a change of custody in order to insure the [children's] best interests' (citations omitted)." Id. Plaintiff asserts that she entered into the Agreement with defendant in the hopes that the hostility would end and they would be able to work together for the benefit of the children, but that his belligerence, incapacity to agree and hatred for her and her family have made co-parenting impossible, and his antagonistic approach to everything prevents him from cooperating on matters concerning the children. Plaintiff's allegations regarding, inter alia, defendant's apparent insensitivity to the imminent death of the children's grandmother and his inflexibility to consider the importance of the children spending time with their grandmother versus a few missed days of pre-school and kindergarten and his one weekend of missed access; her allegations regarding defendant's antagonistic and pedantic communications; her allegations regarding his lawyer like communication with regard to a seemingly routine, minor issue that he treated as a "major issue", to extent whereby he involved school personnel; and her allegations regarding defendant taking legal action on behalf of the children without consulting plaintiff, all provide a sufficient basis to entitle plaintiff to a hearing as to whether there is a sufficient basis to modify custody.

Accordingly, a hearing will be scheduled by the Court."

Decision and Order, J. Christopher June 16, 2015.

The Court also ruled that,

[w]ith regard to the parties' requests to modify the parenting schedule and defendant's request for clarification of the Agreement there are issues of fact that require a hearing for determination. These issues will be heard in conjunction with the hearing on modification of custody.

With regard to defendant's cross-motion for the appointment of a parenting coordinator, there are issues of fact that require a hearing for determination. These issues will be heard in conjunction with the hearing on modification of custody.

Id.

The Trial

The trial of this matter began on January 5, 2016 and continued for 16 days through January, February and March.

The Court heard testimony from the following witnesses: the children's 24 year old babysitter; plaintiff's father, a retired civil engineer from Louisiana; G. D., plaintiff, a 36 year old graduate of the University of Georgia, who majored in journalism; Elizabeth Meyer Gross, the children's pediatric occupational therapist; Dr. Allison Bell, the parties' prior parent coordinator; Dr. Stephen P. Herman, the Court appointed forensic psychiatrist; Colette Coleman, the SEIT (Special Education Itinerant Therapist) for E.; and Mr. D., the defendant, an attorney.

The Court has reviewed,...