Marvin F. v. Jaran H.
| Decision Date | 15 November 2021 |
| Docket Number | Docket No. V-5719-2019 V-6470-2019 |
| Citation | 155 N.Y.S.3d 305 (Table),73 Misc.3d 1222 (A) |
| Parties | In the Matter of a Proceeding Under Article 6 of the Family Court Act, MARVIN F., Petitioner, v. JARAN H., Respondent. |
| Court | New York County Court |
The mother was represented by Charles A. Lawson, Esq., 26 Court Street, Suite 1708, Brooklyn, NY 11242, Telephone: 347-450-7321; lawsonpllc@gmail.com;
the Father was represented by Tennille M. Tatum-Evans, Esq., 316 West 116th Street, Ste 3B, New York, New York 10026, tmt.evans@gmail.com.
Papers Numbered
Summons, Petition for Custody & Exhibits Annexed1
Summons, Petition for Custody & Exhibits Annexed2
Exhibits Admitted in Evidence3
Court Proceedings Recordings 4
Upon the foregoing papers, the evidentiary bench trial presided by the undersigned from November 20, 2019 to August 12, 2021, the exhibits admitted into evidence, counsels’ arguments, and for the following reasons, the Cross Petitions by Petitioner Marvin F. (hereinafter "Father") and Respondent Jaran H. (hereinafter "Mother"), for custody and visitation of the subject Child, are both granted in part and denied in part in accordance with the following decision.
After meeting online in early 2016, the Father and Mother began a romantic relationship which lasted for almost two years. Both parents are college-educated businesspeople; the Father, originally from Los Angeles, California, completed college in Atlanta with a B.A. in Philosophy, and currently works as Senior Client Manager for American Express, while the Mother works as a Merchandising and Operations Manager at Tiffany & Co. in Manhattan. Their union procreated the subject Child of these proceedings, outside of marriage. Although upon learning of the pregnancy in July 2017 the Father was initially happy, he became somewhat concerned about its siring because there was some discrepancy as to the conception date. Yet, his suspicions promptly vanished, their relationship continued, and he started to accompany the Mother to her prenatal doctor's visits and was at the hospital at conception, immediately signing an Acknowledgement of Paternity (see Family Court Act § 561 ).
The couple's resiliency was tested early on the pregnancy when an amniocentesis test revealed that the baby had a chromosome abnormality apparently because of the advanced age of the Mother, who was around 40 years old at that time. There were discussions about ending the pregnancy, but they decided to keep the baby. Upon his successful birth via cesarean operation, the family briefly lived together, and the Father took care of her and the Child in a one-bedroom apartment that he rented across the street from the Mother's family's multistory brownstone residence in Brooklyn, New York. The Father moved across the street from Mother precisely to be close to her and her family. Unfortunately, the couple began experiencing difficulties and tried counseling, but it did not work, eventually resulting in the parties separating in May 2018. The Mother, who had taken maternity leave from Tiffany's, left with the Child to live fulltime at the house with her siblings and the Maternal Grandmother, Linda H. (hereinafter "Grandmother"), who had come from her residence in Virginia to visit and help with the birth of the Child. Shortly thereafter, the Mother went to Virginia with the paternal grandparents for three weeks to convalesce and learn about baby rearing, essentially excluding the Father from the Child's life.
In the first months of the Child's life, the Father was involved with and would see the Child three or four times a week in the morning prior to going to work, upon his return at night and on the weekends, but always in the presence of someone at the brownstone. The Mother involved the Father in feeding the Child, diapering him, and changing his clothes as she wanted him to "understand what to do to care for his son." Still, by September 2018, although he tried to get increased visitation with the Child, he was only given one hour per week at the Mother's home supervised by her or the Grandmother. The Mother had created a group chat and he was forced to speak to both the Mother and the Grandmother to ask about the Child and for visitation. When he would go to the Mother's house wanting to visit the Child by the last months of 2018, the Grandmother and Mother would instead make him help with the house chores, like fixing the crib, cleaning pads, doing the baby's laundry, assembling strollers, disassembling a basinet, and doing other things for the Child, without actually having any time alone with the Child.
By December 2018, the Father realized that the Mother was envisioning a life with the Child without him, and he decided to be more forceful in asking for visitation, but his requests were denied by the Grandmother, not even the Mother! From December 2018 to February 2019, he testified credibly as supported by documentary evidence that the Grandmother was monopolizing the Child and not letting him see him, but for a couple of hours during the weekend. In fact, he will see the Child more when Mother was not working than when she was working. Even though he wanted to spend the Childs’ first Christmas Day with him in 2018, the Grandmother and Mother announced they had their "family reunion" and they came to his residence for just one hour to get his gifts. He was not permitted to see the Child at all in his first New Year's Day of 2019, and only said good night on the second. He was not even permitted to see the Child in his own birthday, nor included in the decision to get a passport for the Child. Despite this shabby behavior, he did not want to push too much to get visitation or sound upset or aggressive because they will use that anger against him to further restrict visitation. He felt like he was being treated as a "friend of the family or neighbor" when visiting his own Child.
As a result, on March 4, 2019, the Father commenced the instant proceedings by filing a Petition against the Mother in Kings County Family Court, seeking joint legal custody and full visitation rights with the Child. The Mother promptly followed with her own Cross Petition for Custody on March 8, 2019, seeking sole legal custody. On March 29, 2019, both parties appeared with counsel before the Honorable Keith E. Brown, that day's Intake Judge at the Family Court. While the Father made an application for expanded supervised visits, the Mother refused the same from the inception of the proceedings, claiming that Father's supervised visits were not going well and that he did not know how to care for the Child. Nevertheless, on that date, the Court issued an Order of Visitation (Brown, J.) granting Father parenting time the next day between the hours of 10:00 a.m. and 2:00 p.m., and adjourned the case to April 4, 2019 to the Undersigned for a visitation hearing given the Mother's reluctance to give unsupervised visits to the Father.
Upon oral argument where the Mother raised several excuses as to why visitation should not happen, by Order dated April 4, 2019 (Vargas, J.), this Court rejected her arguments and granted the Father unsupervised day visits with the Child. At every court appearance, the Mother would raise a different excuse or pretext — that she was breastfeeding, that he did not know how to bathe or care for the Child, or that her nephew was sick - to prevent the Father from having additional visitation. On the next scheduled date, May 14, 2019, this Court again increased the Father visitation to overnight for at least one night per week, over the Mother's objections. Again, on the following court appearance of July 16, 2019, Father's visits were increased with an additional overnight visit during the week. Currently, the Father has alternate weekend visitation from Friday to Sunday as well as an overnight weekday visit when it's not his weekend. Additionally, the Father, who works from home during COVID, has the right of first refusal with regard to childcare so that he is to care for the Child when the Mother works or needs childcare, rather than having a paid caregiver, including the Grandmother.
Based on the parties’ failure to reach a settlement agreement, the matter proceeded to trial before the Undersigned on November 20, 2019. The parties provided Opening Statements with the Father saying that both parties have the potential to be outstanding parents, but that the Mother has failed to foster and prevented the Father from exercising full visitation without supervision. The Father claimed that the evidence will show that the Mother works all holidays and weekends and cannot take care of the Child, leaving that responsibility to the Grandmother. Only Court intervention elicited visitation overnight with the Child, and he would like to have joint physical custody and legal custody. For her part, the Mother opened claiming that the parties broke up because Father was questioning the paternity of the Child and became depressed when there was a possibility that the Child may have special needs. She requested sole legal and physical custody with certain visitation for the Father.
The trial continued on November 21, 2019 and January 28, 2020 with Father's direct testimony. In addition to the factual recitation above, the Father credibly testified that only upon filing this proceeding did the Mother start affording him a little more visitation like three or four hours, but always at their residence with the Grandmother. Even though he had been visiting with the Child almost daily, the Father introduced in evidence an email dated March 4, 2019, wherein the Mother stated:
propose that you continue to visit [the Child] on a weekly basis as you continue to develop your parenting skills and develop a bond with [him]. These visits will give you an opportunity to feed, bathe and soothe [the Child], as well as play with him and put him to sleep. This frequency...
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