Joseph S. v. Tina W.
| Decision Date | 20 September 2022 |
| Citation | 2022 NY Slip Op 51413 (U) |
| Parties | In the Matter of a Proceeding Under Article 6 of the Family Court Act Joseph S., Petitioner, v. Tina W. and STORM C., Respondents. |
| Court | New York Family Court |
Unpublished Opinion
Kristine M. Demo-Vazquez, Esq., for Joseph S.
Senior Legal Aid Attorney Denise Buscemi, Esq., for Tina W.
Assistant Monroe County Public Defender Erin Erturk, Esq. for Storm C.
This is a custodial dispute among biological Father, Maternal Grandmother and biological Mother.
Petitioner-Father Joseph S. (Father) filed three petitions against Respondent-Maternal Grandmother Tina W. (Grandmother) and Respondent-Mother Storm C. (Mother). By petition dated February 9, 2018 he initially sought visitation with his child, Tina C. (DOB: XX/XX/2015), and later amended his petition on April 19, 2019 seeking sole custody. He filed a violation petition on August 18, 2020, alleging he was denied visits on ten occasions. On August 24, 2020, he filed a second violation petition alleging he was denied visits on two occasions, one date which was included in the prior violation petition.
The Court finds that Father sustained, in part, his petition for visitation but failed to sustain his application for sole custody. Grandmother proved both extraordinary circumstances and it is in Tina's best interests that she and Mother continue to have joint custody of Tina, with Grandmother retaining primary physical custody and final decision making authority. Father shall enjoy supervised visitation. A review of the voluminous record received into evidence does not support Father's violation finding against Grandmother.
Prior to the instant case, Father filed a paternity petition on October 14, 2015 and was adjudicated the legal father of Tina C. by Order of Filiation entered March 7, 2017, a Corrected Order of Filiation entered March 31, 2017, and a Second Corrected Order of Filiation entered March 19, 2018. Grandmother was appointed Temporary Guardian of the child by Order entered October 4, 2016, and her guardianship was eventually converted to a custodial action. An Order of Custody was entered March 6, 2018, upon consent of Mother Father and Grandmother granting joint custody between Grandmother and Mother with Grandmother having primary physical residency and final decision making authority. There was no finding of extraordinary circumstances. As a result of his incarceration, Father's rights were reserved because he was incapable of fulfilling the obligations of a custodial parent See Matter of Van Orman, 19 A.D.3d 1167 (4th Dept 2015).
A protracted trial spanned eight days over the course of two and a half years (due in part to Covid-19 shutdowns [1] and scheduling limitations of all counsel). The trial was held both virtually and in person. Five witnesses testified: Father, Mother, Grandmother, Theresa J. (Father's friend who supervised approximately eight visits in 2018) and Chelsea H. (the subject child's aunt through marriage to Joseph C. and a visitation supervisor). The Court finds all the witnesses' testimony (except Father) to be credible. Father's testimony lacked credibility (see Matter of Louise E.S. v W. Stephen S., 64 N.Y.2d 946, 947 [1985] ["respect is to be accorded the Trial Judge's advantage... in observ[ing] the demeanor of the witnesses"]; 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]). For example, Father alleged Chelsea H. did not fulfill her duty as a visitation supervisor because she failed to supervise the visits. Father claimed that Ms. H. was "100 percent lying," however photographs taken at those visits and received as Respondent's Exhibits E - H rebut Father's testimony. "It is well settled that a court's determination regarding custody.... based upon a first-hand assessment of the credibility of the witnesses after an evidentiary hearing, is entitled to great weight and will not be set aside unless it lacks an evidentiary basis in the record" Matter of Crill v Crill, 181 A.D.3d 1199 [4th Dept 2020]).
The Court also received into evidence twenty-three exhibits: Petitioner's Exhibit 1, Second Corrected Order of Filiation; Petitioner's Exhibits 4-15 pictures of Tina with Father at various visits; Petitioner's Exhibit 16 a compact disc obtained from Walmart depicting an unexpected meeting between Father and Tina; Respondent's Exhibit A certified records dated August 1, 2019 of the Society for the Protection and Care of Children (SPCC); Respondent's Exhibit B certified records dated February 6, 2020 of SPCC; Respondent's Exhibit C certified records dated December 15, 2020 of SPCC; Respondent's Exhibit D certified records dated February 6, 2020 of Genesee Pediatrics (Rochester Regional Health); Respondent's Exhibits E - H, pictures of the child going to or at visits with Father; and Respondent 2's Exhibit A Child Protective Records, including a compact disc [2], Attorney for the Child's Exhibit 1 Order of Dismissal of Paternity Petition entered May 9, 2016. The Court took judicial notice of Father's paternity petition filed October 14, 2015 in connection with the Dismissal of his Paternity Petition.
Child Tina C. (DOB: XX/XX/2015)
Tina, now seven, was only nine weeks old when she began living with Grandmother. Tina has always been healthy and active, meeting all of her milestones and having routine well child visits. This year she began the second grade at Village Elementary. She has no special needs.
Petitioner-Father Joseph S. (DOB: XX/XX/1967)
Father Joseph S. has five children who he testified are "grown and moved on." He was not present when Tina was born. In 2015 he filed but withdrew a paternity petition because he wanted to confirm through genetic marker testing first that he was Tina's biological father. In 2016 he filed a second paternity petition and paternity thereafter was established. Subsequently he sought visitation, and later amended his petition to seek sole custody of Tina.
Father testified he was wrongly incarcerated in 2018 after Mother alleged he raped her in the presence of Tina and released only after the grand jury no billed the case. Father admits in 2019 he was convicted of driving while intoxicated, sentenced to probation for three years and had his license suspended [3]. Since the onset of trial Father has changed residences and jobs. Originally he lived with his brother and had a bedroom for Tina. He has since downsized to a one bedroom apartment and lives alone. Father asserts he owns a house in the City of Rochester which he hopes to renovate. Father was employed as a machinist at Ingleside Machine Company, making $15.50 per hour. Now he is employed by Flower City, a custodial agency. Father took classes but did not finish his degree at Monroe Community College.
Respondent-Maternal Grandmother Tina W. (DOB: XX/XX/1973)
Grandmother is the sole caretaker of the subject child. She lives with her husband Aleon W., her son Noah, her granddaughter Sayionna C., her step- daughter Brielle M. and, when feasible, with Mother. Grandmother's son Joseph C. and Chelsea H. also lived in the house before their own son was born. Grandmother and her husband own a local bakery and deli which opened in April 2021. Grandmother previously worked as a registered nurse.
Grandmother schedules and takes Tina to all her doctors' appointments, taught Tina to walk, fed her, bathed her, bought her clothes and provided for daycare [4]. At the onset of trial, she had recently returned from a five day vacation to Disney World with Saiyonna, Tina and Noah and their maternal great aunt Keisha. She has also taken the children to the King's Dominion Amusement park in Virginia. Grandmother employs time out techniques to discipline Tina. When Mother is incarcerated, Grandmother pays Mother's telephone bill to allow Mother to check on her two girls daily.
Respondent-Mother Storm C. (DOB: XX/XX/1995)
Storm C. has a history of sporadic incarceration, but when freed she lives with her extended family at Grandmother's house. As to extraordinary circumstances, Storm testified that Grandmother is the primary caretaker of Tina and it makes her happy and proud that both her girls enjoy such good care. Grandmother testified that while Storm only lived with them a short while, she helped bathe Tina, feed her and change her diapers. Mother has a nontraditional relationship with Tina. She is not now, nor ever has been, Tina's primary caregiver.
Father has experienced several forms of visitation: supervised public place visits, which expanded over time to monitored visits including a monthly overnight visit at his sister's house, theraputic visits at SPCC, and supervised visits at SPCC [5]. He is frustrated with restrictions on his time with Tina, however, his own poor judgment has impeded expansion of his visits.
One egregious example of his poor judgment is when he kept Tina for two or three days instead of returning her at the end of a visit in Summer 2017. He admitted he violated this Court's order and that Grandmother only retrieved the child with police intervention. Grandmother testified that when Father withheld the child she complied with Father's strange demand that she repeat, "Mr. S., Tina is your daughter, not my daughter." Father acknowledged he released Tina to Grandmother at night on Jefferson Avenue in the City of Rochester. Grandmother testified at approximately 10:30 p.m. a tearful Tina was returned to her. Father showed no empathy for how Tina might be afraid and confused by this incident, and he gave no heed...
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