K.J. v. T.K.
| Decision Date | 28 January 2022 |
| Docket Number | Index XXXXX |
| Citation | 2022 NY Slip Op 50184 (U) |
| Parties | In the Matter of a Proceeding Under Article 6 of The Family Court Act K.J., Petitioner, v. T.K., Respondent. |
| Court | New York Family Court |
Unpublished Opinion
Wendy Pelle-Beer, Esq., Attorney for Petitioner, K.J.
Lisa Silverman, Esq., Attorney for Respondent, T.K.
Edward Emanuele, Esq., Attorney for Child.
The following papers were read on this motion:
Petitioner's Order to Show Cause and Supporting Papers 1
The petitioner father, K.J. ["petitioner" or "father"], in this child custody litigation, filed a motion by Order to Show Cause dated November 22, 2021 seeking an order which: 1) grants him weekly parenting time with the subject child, T.J. [D.O.B. 0/00/0000] ["child"] on an alternating basis; and 2) requires daily electronic/telephone video contact with the child when the child is with the respondent mother, T.K ["respondent" or "mother"]. In signing the Order to Show Cause, the Court directed that any answering papers be filed with the Court and served on the parties on or before December 7, 2021 and that courtesy copies of all papers be provided to chambers by December 7 2021. Neither the respondent nor the Attorney for the Child filed any answering papers. The father's motion is determined as follows:
The parties in this matter have filed cross-petitions for custody of their child. On October 15, 2021, the mother filed her petition for custody [Docket Number V-0000-00]. She alleged in her custody petition that the father is physically abusive to her and in front of the child. She also filed a family offense petition against the father on October 15, 2021. That day, she appeared before the intake Judge, and was issued an ex parte Temporary Stay Away Order of Protection in her favor and against the father, which required him to inter alia, stay away from the mother "except for visitation pursuant to a Court Order or as agreed to in writing, text or email".
On November 1, 2021, the father filed a cross-petition by Order to Show Cause for residential custody of the parties' child. He alleged in his custody petition that the parties upon mutual agreement, jointly share legal custody and residential custody of their child. He further alleges that they agreed the child would live with him one week and the mother the following week on an alternating basis. He alleges that this arrangement has been in existence since October 2018, after the parties separated.
He further alleges in his Custody Petition that an incident occurred between the parties on October 12, 2021, when he dropped off their son at the mother's house. He alleges that they exchanged words outside of her home, that this conversation occurred outside and not in the presence of the children (the parties' child and the mother's child), and that the mother filed a false complaint with police that he had assaulted her, which caused him to be arrested. He alleges that it is in the child's best interests to reside with him to ensure the child's safety and well-being. The Court assigned an attorney to represent the child and directed the Nassau County Department of Social Services to conduct an investigation into the child's health, safety and welfare and return to the Court a written report of its findings and determination(s).
The parties first appeared before the Court on November 15, 2021. The mother was assigned counsel and the father appeared with counsel. The Court modified the Temporary Order of Protection, so that it now requires the father to stay away from the mother, the parties' child, and the mother's other child, T.C. [D.O.B. 0/00/0000], except for parenting time pursuant to future Court Order or future written agreement of the parties.
On November 22, 2021, the father filed the subject motion by Order to Show Cause, seeking an Order which: 1) Grants him weekly parenting time with the subject child on an alternating basis; and 2) Requires daily electronic telephone/video contact with the subject child when the child is with the mother. The father's motion includes a supporting affirmation from his counsel, in which counsel affirms that she immediately reached out to the mother's attorney after the November 15, 2021 court appearance, and that on November 20, 2021, she learned that the mother wanted the father's parenting time with the child to be supervised through EAC. (Attorney Affirmation of W.P.B., dated November 22, 2021 ["P.B. Aff. in Support"], ¶ 4). The father's counsel contends that no reason has been provided for why parenting time should be supervised, that the father has always shared residential custody with the mother, and there has never been a safety issue regarding the father and the care of the parties' son. (P.B. Aff. in Support, ¶ 4). The father's attorney asserts that, based on the Court Ordered Investigation and the parties appearing before the Court, the Court has been provided with sufficient information to determine that, under the circumstances of the case, it is in the child's best interests to award the father with the requested temporary access order. (P.B. Aff. in Support, ¶ 5).
In his supporting affidavit the father contends that the parties had abided by an agreed upon arrangement for nearly three years pursuant to which they shared joint legal and joint residential...
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