K.A. v. N.Q. (In re a Proceeding Under Article 6 of Family Court Act)
| Decision Date | 02 February 2022 |
| Citation | 2022 NY Slip Op 50187 (U) |
| Parties | In the Matter of a Proceeding Under Article 6 of the Family Court Act, v. N.Q., Respondent. K.A., Petitioner, |
| Court | New York Family Court |
Unpublished Opinion
Crystal Pannell, Esq., Attorney for Petitioner, K.A.
Harry Burstein, Esq., Attorney for Respondent, N.Q.
Megan Wooley, Esq., Attorney for Child.
The following papers were read on this Motion:
Petitioner's Order to Show Cause and Supporting Affirmation with Exhibits 1
The petitioner father, K.A. ("petitioner" or "father") in this Article 6 proceeding has moved by Order to Show Cause, filed in the Supreme Court of the State of New York, County of Nassau, on December 9, 2021, for an Order which: 1) awards the father temporary sole legal and sole residential custody of the parties' children, C.A. [DOB 0/00/0000] and L.A. [DOB 0/0/0000]; 2) directs the respondent mother, N.Q. ["respondent" or "mother"], to enroll in parenting classes; and 3) directs the respondent to enroll in anger management classes and 4) upon completion of a court-ordered program, award the parties joint residential and joint legal custody of the parties' two minor children; and 5) awards the father an Order of Protection against the mother. The mother filed papers opposing the father's motion by Order to Show Cause. The father's motion is determined as set forth below:
The parties have never been married. On or about December 6 2021, the father filed a petition in the Supreme Court of the State of New York, County of Nassau, for temporary custody of the parties' children pursuant to Article 6 of the Family Court Act and a Temporary Stay Away Order of Protection pursuant to Article 8 of the Family Court Act, against the mother and in favor of the petitioner and the parties' children. The father affirmed in his Petition that he is not seeking a permanent change in custody; he is asking to be awarded temporary custody until after the mother enrolls in programs to help her deal with her anger and violent tendencies, following which he would "welcome a return" to the parties' prior 50/50 custody arrangement.
He subsequently moved, by Emergency Order to Show Cause, for an Order which: 1) Awards him temporary sole legal and sole residential custody of the parties' children; 2) Directs the mother to enroll in parenting classes; 3) Directs the mother to enroll in anger management classes; 4) Upon completion of a court-ordered program, awards the parties joint residential and legal custody of the parties' children; and 5) Awards the father an Order of Protection against the mother.
The Order to Show Cause was signed by Hon. Gary F. Knobel, JSC was made returnable December 14, 2021, and granted the petitioner the following interim relief: 1) awarded the father temporary legal and residential custody of the parties' children, pending the hearing of his motion; 2) ordered that the children shall not be removed or relocated outside of the County of Nassau, pending the hearing on the father's motion; 3) ordered that the father and the parties' children were awarded a Temporary Order of Protection ["TOP"], requiring the mother to, inter alia, comply with the following:
"Stay away and refrain from: [i] Assaulting, stalking, harassment, aggravated harassment, menacing, reckless endangerment, strangulation, criminal obstruction of breathing or circulation, disorderly conduct, criminal mischief, sexual abuse, sexual misconduct, forcible touching, intimidation, threats, identity theft, grand larceny, coercion or any criminal offense against" the father and both of the parties' children. (Emergency Order to Show Cause, dated December 9, 2021).
The father's motion includes the supporting affirmation of his counsel, in which counsel asserts that emergency relief is needed because the mother is "engaging in erratic and volatile behavior that negatively impacts the children" and "demonstrates poor judgment" pertaining to the parties' children, including her intention to relocate, in the middle of the school year, without informing the father of their new address. (Affirmation of Crystal S. Pannell, Esq., dated December 3, 2020 ["Pannell Aff. in Support"], ¶ 4).
The mother's opposition to the father's motion consists of her Affidavit in Opposition to Emergency Order to Show Cause, in which she attests that she and the father have never been married and, therefore, none of the relief sought in the father's Petition is ancillary to any divorce action. (Affidavit in Opposition to Emergency Order to Show Cause by N.Q., dated December 13, 2020 [ ]. The mother further asserts that the father failed to inform the Supreme Court that the parties were already involved in a Family Court proceeding that is pending in the Nassau County Family Court, which she had filed on December 6, 2021 [the father's Order to Show Cause was signed in the Supreme Court on December 9, 2021]. (Q. Aff. in Opp., ¶ 3). She further attests that on December 6, 2021, the Family Court granted her a TOP in her favor and against the father, and that the Court also appointed an Attorney for the Children ["AFC"]. (Q. Aff. in Opp., ¶¶ 3 and 4). She requests that the father's case be transferred to the Family Court.
She attests that the father has threatened harm to her, and that he previously cut up a dead mouse and left it by her slipper. (Q. Aff. in Opp., ¶ 7). She attests that the parties have a long history of acrimony and differing parenting styles, that they have different religious and cultural beliefs, and she denies that she improperly disciplines their children. (Q. Aff. in Opp., ¶ 8). She denies engaging in violent behavior and asserts that the father has a long history of engaging in physical violence towards her. (Q. Aff. in Opp., ¶ 10). She further attests that she does not intend to leave New York State with the parties' children. (Q. Aff. in Opp., ¶ 14). She states that she is currently unemployed and that while she prefers to stay in New York, she is amenable to working in another state if that is not possible. (Q. Aff. in Opp., ¶ 14). She affirms that she would never unilaterally remove the parties' children from New York state.
She further affirms that due to her not understanding that the father had obtained a stay-away TOP against her, she was required to spend the night in jail after she picked up one of the sons from school and called the father to ask him to give her the other son so that both sons could be interviewed by the AFC. (Q. Aff. in Opp., ¶ 18). She attests that the father's application to the Supreme Court was designed to get the mother removed from her home and that once the children's AFC reports to the Family Court following her interview with them, it will become apparent and will support that she is a caring and fit mother. (Q. Aff. in Opp., ¶ 19). The father's petition for custody of the parties' two children was subsequently referred to the Family Court pursuant to Supreme Court Order dated December 14, 2021. Pursuant thereto, the stay-away TOP that the father had obtained against the mother in favor of him and their children expired on December 15, 2021.
An order affecting or modifying custody, even temporarily, must be based on the best interests of the child, under the totality of the circumstances. (See Matter of Street v Palmer, 187 A.D.3d 1197, 1198 [2d Dept 2020]; see also, Matter of Sullivan v. Moore, 95 A.D.3d 1223, 1223 [2d Dept 2012]). "In any action concerning custody or parental access where domestic violence is alleged, the court must consider the effect of such domestic violence upon the best interest[s] of the child[ren], together with other factors and circumstances as the court deems relevant in making an award of custody". (Matter of Poltorak v. Poltorak, 167 A.D.3d 903, 905 [2d Dept 2018]).
"The general rule is that, while temporary custody may be granted without a hearing, 'where sufficient facts are shown by uncontroverted affidavits, it is error as a matter of law to make an order respecting custody, even in the pendente lite context, based on controverted allegations without having had the benefit of a full hearing". (Matter of Garcia v. Ramos, 79 A.D.3d 872, 873 [2d Dept...
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