In re Brady S v. Darla B.
| Decision Date | 14 December 2020 |
| Citation | 2020 NY Slip Op 51619 (U) |
| Parties | In the Matter of a Proceeding Under Article 6 of the Family Court Act Brady S, Petitioner, v. Darla B, TIMOTHY B and JEANETTE B, Respondents. In the Matter of a Proceeding Under Article 6 of the Family Court Act DARLA B and TIMOTHY B Petitioners, v. BRADY S and JEANETTE B, Respondents. |
| Court | New York Family Court |
Unpublished Opinion
Seema Ali Rizzo, Esq., for Brady S Nathan A. Van Loon, Esq., for Darla B and Timothy B
Assistant Monroe County Conflict Defender Sarah Splain Holt Esq., for Jeanette B
Lisa J. Maslow, Esq., Attorney for the Child
This is a custodial dispute among biological Father, maternal Grandparents and biological Mother. Central to the dispute is that Grandparents do not trust Father. They view Father as a predator based on his prior conviction for statutory rape of Mother when Mother was age 15 and Father was age 21. Mother now a 29 year old adult, has a nontraditional relationship with her daughter.
On April 27, 2018 the New York State Appellate Division, Fourth Department, reversed the decision of the Honorable Patricia E. Gallaher entered November 21, 2016. The Appellate Division found that maternal grandmother, Darla B (Grandmother) and maternal grandfather, Timothy B (Grandfather) had established that extraordinary circumstances exist regarding their then 10 year old granddaughter, Isabella S a/k/a Ellie S (DOB xx/xx/2008) (Ellie). This case was remitted to family court to determine, after a hearing, whether it is in Ellie's best interests either to award primary physical custody of her to Brady S (Father), or to increase his visitation with her. Grandparents also petitioned this Court for sole custody and the cessation of Ellie's visits with Father. The Court held a combined hearing to address all pending matters.
The Court finds both that Father sustained, in part, his petition, and Grandparents failed to sustain their application for sole custody and the cessation of all visits with Father. Ellie's best interests necessitates an award of joint custody among Grandparents, Jeanette B (Mother) and Father with the exercise of zones of influence. Grandparents and Father shall share equal physical residency of Ellie, with Mother having scheduled parenting time.
By order entered November 20, 2009, the Honorable Patricia E. Gallaher, upon consent, granted Mother inter alia sole custody and primary physical residency of Ellie. Father had visitation once per month at Gowanda Correctional Facility where he was incarcerated. By order entered March 1, 2013, Judge Gallaher, upon consent, settled various petitions and ordered, inter alia, joint custody of Ellie to Grandparents and Mother, with Grandparents enjoying primary physical residency (the 2013 Consent Order). Father was awarded limited supervised visits, which over the course of a year were to increase both in time and frequency, and become unsupervised.
Father filed a petition for sole custody on April 13, 2015 and an amended petition for expanded visits on October 28, 2015, which alleged, in part, that despite the 2013 Consent Order, Grandparents refused to expand and remove the supervision over his visits. After trial Judge Gallaher rendered a Decision and Order entered November 21, 2016, which was appealed by both Father and Grandparents. The Appellate Division, Fourth Department reversed that decision and reinstated in its entirety Father's amended petition for a change in custody or increased visitation. The Appellate Division found Grandparents had proven extraordinary circumstances and remitted the case to Family Court for a best interests hearing.
While the appeal was pending Father filed an Order to Show Cause on January 23, 2017 seeking enforcement of the Order of Custody entered November 21, 2016. By Order entered November 28, 2017, the Honorable Stacy M. Romeo, upon consent, granted Father inter alia sixty (60) hours of make-up visits, and the parties withdrew all pending applications.
Grandparents thereafter filed a petition on August 14, 2018 seeking inter alia sole custody and the cessation of all Father's visits. Mother filed a petition on September 26, 2018 seeking primary physical residency. By temporary order entered October 17, 2018 the Honorable James A. Vazzana granted Mother unsupervised visits with Ellie each Saturday from 10:00 a.m. until 6:00 p.m. and Father unsupervised visits with Ellie each Sunday from 10:00 a.m. until 6:00 p.m. Mother withdrew her petition for primary physical residency before the Honorable Fatimat O. Reid on January 15, 2019. Judge Vazzana denied Grandparents' motion to vacate his temporary order on March 12, 2019. Ultimately Grandparents' pending petition, and the remitted case were transferred to this Court for trial.
The Court took testimony over ten days. Five witnesses testified: Father, Mathew J, Grandmother, Santo W. Bentivegna, PhD [1] and Grandfather. The Court finds the witnesses' testimony overall to be credible, with the exception of Grandmother. Grandmother had selective lapses in memory rendering her testimony unreliable. The Court also found her to be a hostile witness. Indeed, Grandmother could not remember how many visits Grandparents had denied Father, and she failed to produce her calendar reflecting the missed visits. Grandmother's testimony was impeached further when she asserted that she could not remember whether Ellie was five or ten years old when she told her granddaughter that her conception was abnormal because she was conceived out of rape (see Matter of Louise E.S. v W. Stephen S., 64 N.Y.2d 946, 947 [1985] []; Eschbach v Eschbach, 56 N.Y.2d 167 [1982]; Matter of Paliani v Selapack, 178 A.D.3d 1425, 1426 [4th Dept 2017]); see also Matter of Cross v Casewell, 113 AD30 (1107 [4th Dept 2014]).
The Court also received into evidence seventy-seven (77) exhibits: Petitioner's Exhibit 1 (Order of Custody and Visitation between Mother and Father, signed by Judge Gallaher on November 12, 2009 under docket number V-xxxxx-08 and V-xxxxx-08); Petitioner's Exhibit 2 (Custody Order among Mother, Father and Maternal Grandparents, entered March 1, 2013, by Judge Gallaher under docket number V-xxxxx-11 and V-xxxxx-08/11C); Petitioner's Exhibit 3 (Photograph of the outside of Father's home); Petitioner's Exhibit 4 (Photograph of the basketball hoop outside of Father's home); Petitioner's Exhibit 5 (Photograph of Father's dining room); Petitioner's Exhibit 6 (Photograph of the foyer and stairs of Father's home); Petitioner's Exhibit 7 (Photograph of the fireplace and furniture in Father's living room); Petitioner's Exhibit 8 (Photograph of a television and furniture in Father's living room); Petitioner's Exhibit 9 (Photograph of the deck and backyard at Father's home); Petitioner's Exhibit 10 (Photograph of the deck, patio set and backyard at Father's home); Petitioner's Exhibit 11 (Photograph of the laundry room and hallway at Father's home); Petitioner's Exhibit 12 (Photograph of the kitchen at Father's home); Petitioner's Exhibit 13 (Photograph of the kitchen table at Father's home); Petitioner's Exhibit 14 (Photograph of Ellie's bed at Father's home); Petitioner's Exhibit 15 (Photograph of television, toys and dresser in Ellie's bedroom at Father's home); Petitioner's Exhibit 16 (Photograph of Ellie's bedroom window and toys at Father's home); Petitioner's Exhibit 17 (Photograph of Ellie in her bed at Father's home); Petitioner's Exhibit 18 (Photograph of Ellie's bathroom at Father's home); Petitioner's Exhibit 19 (Photograph of Ellie's bathroom at Father's home); Petitioner's Exhibit 20 -61, 63, 66 - part E only (various photographs and videos depicting time Father and Ellie spent together), Petitioner's Exhibit 62 (list of 57 exhibits) Petitioner's Exhibit 63 (Photograph of a text message purportedly from Ellie to Mother); Petitioner's Exhibit 67 (Decision and Order of Judge Gallaher entered November 21, 2016), Petitioner's Exhibit 68 (Temporary Order of Judge Vazzana entered October 17, 2018), Petitioner's Exhibit 69 (Curriculum Vitae of Santo W. Bentivegna, Ph.D.), Petitioner's Exhibit 70 (Psychological Assessment Prepared by Santo W. Bentivegna, Ph.D., dated August 3, 2019), Petitioner's Exhibit 71 (text message exchange between Grandfather and Father beginning November 26, 2016), Petitioner's Exhibit 72 (text message exchange between Grandfather and Father beginning March 4, 2018), Petitioner's Exhibit 73 (four-page email from Grandfather to the prior Attorney for Child, dated December 6, 2016), Respondent's Exhibit A (Certified criminal history report for Father from the New York Division of Criminal Justice Services, dated August 4, 2015); Respondent's Exhibit B (Certified copy of Father's employment application at Chevrolet dealership dated February 6, 2012); Respondent's Exhibit C (Temporary Order of Protection [stay away] of Charles T. Maloy, Judicial Hearing Officer [JHO], dated December 8, 2008, [Mother is the protected party and Father is the Respondent]); Respondent's Exhibit D (Order of Protection [refrain from] of Charles T. Maloy, JHO, dated January 5, 2009 in effect until January 5, 2010, [Mother is the protected party and Father is the Respondent]) and Respondent's Exhibit E (Order of Protection [stay away] of the Honorable John J. Connell dated March 6, 2009, in effect until May 1, 2018 [Mother is the protected party and Father is the Respondent]).
At trial Father was 33 years old (DOB: xx/xx/1986). Father previously was convicted of both the statutory rape of Mother and violating various orders of protection...
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