Larisa F. v. Michael S.

• Decision Date: 04 August 1983
• Citation: 466 N.Y.S.2d 899,120 Misc.2d 907
• Parties: In the Matter of LARISA F., * Petitioner, v. MICHAEL S.,* Respondent.
• Court: New York Family Court

Page 899

466 N.Y.S.2d 899

120 Misc.2d 907

In the Matter of LARISA F., ^* Petitioner, v. MICHAEL S.,* Respondent.

Family Court, City of New York Queens County.

Aug. 4, 1983.

Abraham Werfel, Jamaica, for petitioner.

Gerald Goldfeder, Bayside, for respondent.

Gary Solomon, Legal Aid Society, Jamaica, law guardian.

DECISION and ORDER

JEFFRY H. GALLET, Judge:

Petitioner is the mother of two infant girls. She brings this petition to enforce her visitation rights with her daughters and to modify a Judgment of Divorce restricting her to supervised visitation in the apartment of her in-laws.

BACKGROUND

The parties were married in Russia in 1967. Their children, Angela, now 15, and Victoria, now 11, were born before their emigration to the United States in 1978.

In 1980, the respondent father brought an action for custody in the Supreme Court. After trial, Justice Joseph Kunzeman found "... the possible intention of the [mother] to remove the children from this country ..." He issued an order restricting the mother's visitation to certain specified times in the home of the father's parents (where the father and the children were living at the time).

On December 4, 1981, the parties entered into a written stipulation agreeing to a Judgment of Divorce which included the custody and visitation provisions of Justice Kunzeman's order. On April 22, 1982, Justice Sidney Leviss entered a Judgment of Divorce based upon the stipulation and without a trial. The petition sub judice was verified in October of 1982.

FACTS

This court finds several facts, which were, for the most part undisputed. After the Kunzeman Judgment but before the Leviss Judgment, the parties reconciled and lived together with their children in one household for a period of several months. When the parties again separated, the older child, Angela, lived primarily with petitioner for a period spanning approximately four months.

Not too long thereafter, petitioner met and began living with Tom F. Tom and petitioner bought a country house in upstate New York and he made petitioner a partner in his roofing business.

Also during this period, the petitioner has testified, that the respondent and his parents interfered with the court ordered visitation.

After the Leviss Judgment, the petitioner and Tom were married and the respondent's interference with petitioner's visitation with the children continued.

Throughout the entire period commencing with the Kunzeman Judgment and ending with the verification of the instant petition, the petitioner saw the children on the The Court heard expert psychological testimony from both a court appointed psychologist and one called by the petitioner, both of whom opined that a more liberal visitation plan would be in the best interest of the children.

[120 Misc.2d 909] street from time to time without supervision, she knew where they attended school and she held the same job.

THRESHOLD QUESTIONS

Before dealing with the substantive issue of where the best interests of these children lie, certain procedural questions must be answered. The first is whether the court may consider the substantive issues without first finding a change of circumstances after the Leviss order. The respondent argues that all of the issues before the court were, or could have been, before Leviss and that the petition should be dismissed.

The second, assuming the petition is not dismissed, is what effect the prior orders should have on the fact finding.

DISCUSSION

Matters pertaining to custody have long provided the courts with the most difficult and painstaking task of balancing the needs and rights of both parents and children in an atmosphere plagued by feelings of rage, anger, fear, betrayal and confusion. It is in this context that the court must somehow structure a meaningful and workable arrangement that the parties may now use to restructure their daily lives and activities. Throughout this task one paramount consideration must guide any determination and that is the "best interests" of the child. Bennett v. Jeffreys, 40 N.Y.2d 543, 387 N.Y.S.2d 821, 356 N.E.2d 277 (1976); Nehra v. Uhlar, 43 N.Y.2d 242, 401 N.Y.S.2d 168, 372 N.E.2d 4 (1977).

Visitation, as an aspect of custody, is subject to all the rules and guidelines which have been promulgated for use in determining matters of custody. McMahon v. Thompson, 68 A.D.2d 68, 416 N.Y.S.2d 411 (3rd Dept.1979); Juan R. v. Necta V., 55 A.D.2d 33, 389 N.Y.S.2d 126 (2nd Dept.1976). At the forefront of these guidelines again is the best interests of the child. See, e.g. E.R. v. D.T., 77 Misc.2d 242, 353 N.Y.S.2d 612 (Family Court, Genesee County, 1974); Anonymous v. Anonymous, 50 Misc.2d 43, 269 N.Y.S.2d 500 (Family Court, Queens County 1966). However, in addition, courts must be careful to protect and encourage reasonable visitation not only as a phase of a parent's right to custody of his child but also as a phase of the developing body of children's rights. ^** Weiss v. Weiss, 52 N.Y.2d 170, 436 N.Y.S.2d 862, 418 N.E.2d 377 (1981); Matter of Doe v. Doe, 86 Misc.2d 194, 378 N.Y.S.2d 269 (Family Court, New York County 1975); See also, Raysor v. Stern, 68 A.D.2d 786, 418 N.Y.S.2d 713 (4th Dept.1979); Horner v. Horner, 184 Misc. 989, 49 N.Y.S.2d 720 (Domestic Relations Court, Bronx County 1944).

Where there already exists a court order of visitation, a long line of cases, prior to the Court of Appeals opinion in Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 447 N.Y.S.2d 893, 432 N.E.2d 765 (1982), have held that modification shall be granted only upon a showing of substantially changed circumstances. E.g., Miller v. Miller, 74 A.D.2d 663, 424 N.Y.S.2d 771 (3rd Dept.1980); Defrancesco v. Mac Nary, 74 A.D.2d 966, 425 N.Y.S.2d 885 (3rd Dept.1980); Macari v. Macari, 50 A.D.2d 818, 376 N.Y.S.2d 189 (2d Dept.1975); Heller v. Bartman, 65 A.D.2d 876, 410 N.Y.S.2d 393 (3rd Dept., 1978); Schuler v. Schuler, 29 A.D.2d 669, 286 N.Y.S.2d 69 (2nd Dept.1968). Gross v. Kellerman, 62 A.D.2d 1149, 404 N.Y.S.2d 178 (4th Dept.1978). Matter of Lang v. Lang, 7 N.Y.2d 1029, 200 N.Y.S.2d 71, 166 N.E.2d 861 (1960); Matter of Berlin v. berlin With the Court of Appeals opinion in Friederwitzer, the requirements pertaining to pleading and proving extraordinary circumstances in change of custody cases were, at the very least, relaxed. The court made clear that "(t)he standard ultimately to be applied remains the best interests of the child when all of the applicable factors are considered, not whether there exists one or more circumstances that can be denominated extraordinary." Id., 55 N.Y.2d at 95, 447 N.Y.S.2d 893, 432 N.E.2d 765. Further, the court wrote that this "does not mean that a matrimonial court in the Second Department has the authority to change custody simply because change is requested, but that it has the discretion to do so when the totality of circumstances, including the existence of the prior award, warrants its doing so in the best interests of the child." Id. at 96, 447 N.Y.S.2d 893, 432 N.E.2d 765.

21 N.Y.2d 371, 288 N.Y.S.2d 44, 235 N.E.2d 109 (1967).

The Friederwitzer court distinguished the situation where the prior award resulted from the trial judge's judgment after a consideration of all of the relevant evidence from the circumstance where the award finds its way into the judgment through agreement of the parties made during a proceeding in which custody was not contested and no evidence was submitted to the contrary. The court explained that more weight must necessarily be given to the former. Accordingly, "(n)o agreement of the parties can bind the court to a disposition other than that which a weighing of all of the factors involved shows to be in the child's best interests." However, this should not be interpreted to mean that the court intended to impose a stricter burden prior to the modification of a court order of visitation than the one already articulated, rather, "extraordinary circumstances are not a sine qua non of a change in parental custody of a child, whether the original award of custody is made after trial or by adoption of the agreement of the parties" and that in either circumstance the ultimate standard is the child's best interests. Id., at 91, 447 N.Y.S.2d 893, 432 N.E.2d 765.

Courts which have been faced with the issue subsequent to Friederwitzer have gone as far as to state that Friederwitzer rejects any absolute requirement of proof of extraordinary circumstances in change of custody cases. E.g., Bonnaci v. Bonnaci, 89 A.D.2d 634, 453 N.Y.S.2d 90 (3rd Dept.1982). In any event, this court is convinced that it need no longer find some particular, sudden or unusual event which has occurred since the prior award before that prior order may be modified.

It is therefore unnecessary for this court to find that some fundamental change has occurred since the date of either the Kunzeman or Leviss order although a careful consideration of the circumstances of the instant case, including the petitioner's remarriage, may well support such a finding. That is not to say that some change need not be found. Friederwitzer does not hold that a non-custodial parent, at his or her whim, may trigger a full evidentiary hearing on a child's best interests, without regard to a prior decision, merely by filing a petition. It is still necessary to prove a change of circumstances to reopen the best interests question. However, the change need not, by itself, constitute grounds for a change in the custodial or visitation arrangements. Rather, it need only be sufficient to induce the court to look at the totality of circumstances.

THRESHOLD FINDING

In an appropriate case, even the passage of time alone might be a sufficient change. After all, an infant has different needs from those of an adolescent. Or, as in this case, the possibility that the children will be spirited from the jurisdiction may decrease with time. However, the facts of this case do not require that a...