Matter of Hugh L. v. Fhara L.

• Decision Date: 09 August 2007
• Docket Number: 597.
• Parties: In the Matter of HUGH L., Appellant, v. FHARA L., Respondent.
• Court: New York Supreme Court — Appellate Division

44 A.D.3d 192

840 N.Y.S.2d 352

2007 NY Slip Op 06414

In the Matter of HUGH L., Appellant, v. FHARA L., Respondent.

597.

Appellate Division of the Supreme Court of the State of New York, First Department.

August 9, 2007.

Patricia W Jellen, Eastchester, for appellant.

Mark C. Sternick, Forest Hills, for respondent.

Frederic P. Schneider, New York City, Law Guardian.

OPINION OF THE COURT

BUCKLEY, J.

Although the stability ensuing from a prior award of custody is a factor to be considered on a request to change custody, "[t]he standard ultimately to be applied remains the best interests of the child when all of the applicable factors are considered" (Friederwitzer v Friederwitzer, 55 NY2d 89, 95 [1982]). As recommended by the court-appointed forensic evaluator and the Law Guardian below, the totality of the circumstances in this matter demonstrate that the best interests of the child would be served by awarding permanent custody to the father, who in fact had temporary custody from September 2003 until June 2005, shortly after the order appealed.

The parties married in 1996, and their son was born in April 1998, shortly after which they separated. In an April 2000 order, incorporated into the February 2001 judgment of divorce, Supreme Court (Laura E. Drager, J.) granted the mother custody and decision-making authority for medical and dental care, although both parents were to have all information regarding the child's health. The father was given custodial visitation every week from Saturday 10:00 A.M. through Monday 6:00 P.M. and decision-making authority for education, extracurricular activities, and summer camp, although both parties were to have access to all school records and teachers. The court also set a vacation and holiday schedule.

Supreme Court noted the extreme acrimony between the parties, including the fact that the wife had deprived the husband of 45 visits. The court found both parents to be caring and responsible toward the child, and while the father was initially uncomfortable handling an infant, his childcare skills had improved. Nevertheless, both parents possessed troubling traits. The father was arrested in 1998 and an order of protection issued against him following an incident in which he claims he placed a belt around the mother's neck and she cut her hand punching him in the teeth, but which she asserts entailed his tightening a belt around her neck and biting her hand.^* There was no question that the father had a bad temper, although there had been no recurrence of domestic violence, and there was no evidence that he had ever been abusive towards the son.

The mother was overly possessive, tried to limit the father's access to the pediatrician, had no interest in including the father in any decision-making, and wanted to curtail his visits. In addition, she was "less than truthful," her cooperation with the court was "sporadic," she indicated her intent to disobey any court-expanded visitation, and she abused the judicial process by improperly obtaining orders of protection against the father and his sisters in an effort to control access to the child.

The court based its award of custody to the mother on its finding that she offered the most stable environment, in that she had a job and dedicated much time to the child, while the husband was unemployed at the time of trial and relied on the assistance of family members to look after the boy.

In February 2003 the father filed a petition to change custody to himself, and the mother filed a cross petition to, inter alia, give her sole decision-making authority and to reduce the father's weekly visitation to alternate weekends. She also filed a family offense petition, alleging threatening behavior and physical injury at the hands of the father and in the presence of the child. Based on those allegations, a temporary order of protection was issued, and the father's visitation was suspended for one weekend; after a hearing, visitation was reinstated and the pickup and drop-off point was changed from the mother's lobby to a specified police precinct. The mother then filed a petition claiming that the father had violated the visitation order by not returning the child as required, and revised her application for a temporary order of protection by adding a claim that the father had also injured the child. During a hearing on September 9, 2003, Family Court learned that the father had indeed timely returned the child to the precinct, but the mother failed to appear, and therefore the father, after consulting his attorney, kept the child. The mother indicated she would not comply with the directive concerning the use of the precinct because she did not believe it was in the child's best interests. She had not brought the child to the precinct for the visit, and the police had to go to her home to escort the boy. The court issued a temporary order of custody to the father.

Subsequently, both the Law Guardian and the neutral forensic evaluator, Dr. Joe Scroppo, a psychologist, recommended that the father be given sole physical and legal custody, though with liberal visitation for the mother. Based on his discussions with the boy's teacher, Dr. Scroppo reported that the father attended every parent meeting, volunteered to accompany every school trip, and always sent him to school prepared, in contrast to the mother, who never attended any conferences, even when assured that the father would not be there, and allowed the boy to go to class with homework unfinished. Similarly, the pediatrician informed Dr. Scroppo that the mother refuses to accept the diagnosis of the son's asthma, declines treatments, and on at least one occasion failed to follow the dispensing instructions for antibiotic medicine; the father, however, has always followed up appropriately with medical care.

Dr. Scroppo found that the father has a deep familiarity with the child's schooling, medical history, recreational activities, and personality traits. He adequately clothes, feeds, and nurtures the child, and is interested in becoming a better parent. He admits that he has said negative things about the mother in the child's presence, and he acknowledges the love between the boy and his mother and the importance of that relationship.

Dr. Scroppo had the impression that the mother was "less concerned about fulfilling the parental duty of monitoring the child's schooling and of maintaining contact with teachers, and more concerned about how discharging the duty might negatively affect her standing in the ongoing custody/visitation conflict." The mother rejected the pediatrician's diagnosis of asthma, based on her own research over the Internet, and did not think the boy needs his prescription glasses. Overall, she appeared to be more concerned with how others might perceive her than to ascertain the child's health status. She was ill-informed as to the boy's academic performance, and she knew he was having problems with school bullies, but chose to do nothing "because it might make her look bad in others' eyes." She accused the father of hitting the child in front of...