Of v. Theresa G.

Decision Date10 September 2015
Docket NumberNo. V–00642–12/14I.,V–00642–12/14I.
Citation54 N.Y.S.3d 610 (Table)
Parties In the Matter of a Proceeding for Custody/Visitation under Article Six of the Family Court Act ERIC B., Petitioner, v. THERESA G., Respondent.
CourtNew York Family Court

Eric B. by Courtney S. Radick, Esq., Theresa G. by Michael M. Bryant, Esq., and the child, BB by AFC Stephen W. Arnold, Esq.

KIMBERLY M. SEAGER, J.

PROCEDURAL HISTORY

On October 6, 2014, Eric B. (here "the Father"), filed a Petition for Violation of an Order of Custody/Visitation and a Petition for Modification of an Order of Custody/Visitation against Theresa G. (here "the Mother") regarding the now thirteen year old minor child (here "BB"). The Order at issue was issued upon consent of the parties, on August 2, 2013, and duly entered on September 6, 2013 (here "the Order"). The Order granted, inter alia, joint legal and joint physical custody of BB with a three day on/three day off rotation of parenting time for the parties.

The matters came on for trial on February 10, 2015, April 9, 2015 and June 1, 2015. A Lincoln Hearing was held on June 23, 2015. At trial, the Father was represented by Courtney S. Radick, Esq., the Mother was represented by Michael M. Bryant, Esq., and BB was represented by Stephen W. Arnold, Esq. At the Lincoln Hearing, BB was present with his attorney, Stephen W. Arnold, Esq. Written closing arguments were due from counsel by July 22, 2015. All counsel submitted timely closing arguments and all were considered by the Court.

At trial, the Father called to testify: Lori N., a Walmart employee; Christopher S., a police officer with the Oswego Police Department; Diana A., an employee of Pathfinder Bank; Jennifer L., the Father's girlfriend; Daniel T., a neighbor of the Father's, and the Father testified on his own behalf. The Mother testified on her behalf and she called her mother, Marcella G. to testify. The Father also testified on rebuttal. Entered into evidence by the Father was a photo of BB with a Butterfly Knife, a photo of the Mother's jeep outside of "Gary's Bar" along with a screen shot of a phone that had been used to call the Mother at Gary's Bar when the photo was taken and BB's report card dated January 3, 2015.

LEGAL STANDARD

There are two (2) petitions before the Court; one for violation of the Order and one for modification of the Order. With regard to the violation petition, Family Court Act § 156 states the following:

"The provisions of the judiciary law relating to civil and criminal contempt shall apply to the family court in any proceeding in which it has jurisdiction under this act or any other law, and a violation of an order of the family court in any such proceeding which directs a party [ ... ] to do an act or refrain from doing an act shall be punishable under such provisions of the judiciary law, unless a specific punishment or other remedy for such violation is provided in this act or any other law."

The line between civil contempt and criminal contempt may be difficult to draw (compare Judiciary Law, § 753, subd. A, par. 3 [civil contempt], with Judiciary Law § 750, subd. A, par. 3 [criminal contempt] ) but the factor that elevates civil contempt to criminal contempt is the level of willfulness with which the conduct has occurred (see McCormick v. Axelrod, 59 N.Y.2d 574, 583 [1983] [citations omitted] ). The petitioner bears the burden of establishing that respondent willfully violated the order by clear and convincing evidence (see Matter of Seacord v. Seacord, 81 A.D.3d 1101, 916 N.Y.S.2d 664 [3rd Dept 2011] ).

In order for contempt to be found, there must have been an order of the Court which clearly expressed an "unequivocal mandate" (McCormick at 583, 466 N.Y.S.2d 279, 453 N.E.2d 508 ). It must then be determined that the party being held in contempt had knowledge of the order and, finally, that the order had been disobeyed (id.; see also Matter of Petkovsek v. Snyder, [appeal No.2], 251 A.D.2d 1085 [4th Dept 1998] [concerning civil contempt] and James W.D. v. Sandra C., 44 A.D.3d 423, 843 N.Y.S.2d 73 [1st Dept 2007], Matter of Glenn v. Glenn, 262 A.D.2d 885, 692 N.Y.S.2d 520 [3d Dept 1999] and Matter of Keator v. Keator, 211 A.D.2d 987, 622 N.Y.S.2d 338 [3d Dept 1995] [regarding civil and criminal contempt] ). "In addition, it must be established that the offending conduct 'defeated, impaired, impeded, or prejudiced' a right or remedy of the complaining party" (Matter of Petkovsek at 1085 [citations omitted] ).

With regard to modification of custody, it is clear that there can be no modification of a custody order without the moving party first establishing that there has been a sufficient change in circumstances warranting a change in custody and that the change is in the best interest of the child (see Matter of Vasquez v. Barfield, 81 A.D.3d 1398, 917 N.Y.S.2d 468 [4th Dept 2011] ; Matter of Scialdo v. Cook, 53 A.D.3d 1090, 862 N.Y.S.2d 238 [4th Dept 2008] ; Matter of Brown v. Marr, 23 A.D.3d 1029, 804 N.Y.S.2d 181 [4th Dept 2005] ; Matter of Francisco v. Francisco, 298 A.D.2d 925, 748 N.Y.S.2d 72 [4th Dept 2002] ; Dintruff v. McGreery, 34 N.Y.2d 887 [1974] ). However, "[a]n existing custody and visitation arrangement that is based upon a stipulation between the parties' is entitled to less weight than a disposition after a plenary trial' " (Matter of Brown v. Marr, 23 A.D.3d 1029, 1030, 804 N.Y.S.2d 181 [4th Dept 2005] [citations omitted] ).

Once it is established that there has been a sufficient change in circumstances, the Court must then decide what is in the best interest of the child. In determining what is in the best interest of the child, the Court must consider several factors, including:

"the quality of the home environment and the parental guidance the custodial parent provides for the child ..., the ability of each parent to provide for the child's emotional and intellectual development ..., the financial status and ability of each parent to provide for the child ..., the relative fitness of the respective parents, and the length of time the present custody arrangement has been in effect"

(Matter of O'Connell v. O'Connell, 105 A.D.3d 1367, 1368, 963 N.Y.S.2d 789 [4th Dept 2013], quoting Matter of Maher v. Maher, 1 A.D.3d 987, 767 N.Y.S.2d 179 [4th Dept 2003] ).

It is also important for the Court to assess " 'the willingness of each parent to foster a relationship with the other parent' " (Matter of Chilbert v. Soler, 77 A.D.3d 1405, 907 N.Y.S.2d 757 [4th Dept 2010], citing Kaczor v. Kaczor, 12 A.D.3d 956, 958, 785 N.Y.S.2d 573 [3d Dept 2004] ). Recent case law makes clear that "a concerted effort by one parent to interfere with the other parent's contact with the child is so inimical to the best interests of the child ... as to, per se, raise a strong probability that the interfering parent is unfit" (Ordona v. Cothern, 126 A.D.3d 1544, 1545, 6 N.Y.S.3d 860 [4th Dept 2015] [internal citations omitted] ).

The Court must weigh these factors, together with the express wishes of the child, and the "stability and companionship" of residing with siblings in determining what is in the best interests of the child ( Eschbach v. Eschbach, 56 N.Y.2d 167, 173 [1982] ; see Friederwitzer v. Friederwitzer, 55 N.Y.2d 89 [1982] ). The weight the Court gives each of these factors depends on the testimony presented, and the "character and sincerity" of the parties (Eschbach at 172–173, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ; see Matter of Pieri v. Rider, 195 A.D.2d 1013, 600 N.Y.S.2d 578 [4th Dept 1993] ). It should be noted that while the express wishes of a child are not controlling, they are entitled to a significant amount of weight, particularly if the age and maturity of the child makes his/her input meaningful (see Stevenson v. Stevenson, 70 A.D.3d 1515, 894 N.Y.S.2d 696 [4th Dept 2010] ). However, a child's wishes should be discounted when it appears that the child's preference is based upon one parent's lack of discipline (see McCrocklin v. McCrocklin, 77 A.D.2d 624, 430 N.Y.S.2d 320 [1st Dept 1980] ) or is based upon a parent "enforcing few limitations" (Forrest v. Forrest, 212 A.D.2d 475, 476, 623 N.Y.S.2d 214 [1st Dept 1995] ).

With regard to previous orders that granted the parties "joint legal custody," recent case law has made clear that "the continued deterioration of the parties' relationship is a significant change in circumstances justifying a change in custody" (Lauzonis v. Lauzonis, 120 A.D.3d 922, 924, 992 N.Y.S.2d 586 [4th Dept 2014] [internal quotation marks omitted] ). See also, York v. Zullich, (89 AD3d 1447, 1448 [4th Dept 2011] ["the deterioration of the parties' relationship and their inability to co-parent renders the existing joint custody arrangement unworkable] ); Ingersoll v. Platt, (72 AD3d 1560, 1561 [4th Dept 2010] ["the parties' acrimonious relationship and inability to communicate with each other renders the existing joint custody arrangement inappropriate"] ); Heintz v. Heintz, (275 A.D.2d 971, 972 [4th Dept 2000] ["given the inability of the parties to communicate with each other, joint custody is not appropriate"] ).

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Violation:

While the violation petition sets forth several allegations, the two main issues of concerns were the allegations that the Mother withheld BB from the Father during the Father's parenting time and that, in spite of a very specific ordered provision that each party may contact the child one time during the other party's parenting time, the Mother contacted BB approximately 12 to 13 times per day when BB was with the Father.

The testimony of the Father, Jennifer L, the Mother and Marcella G., left no doubt that the Father was deprived of his parenting time with BB from on or about September 10, 2014 to October 31, 2014 when, with a strong warning from the Court that all Orders should be complied with, the Father was able to see BB. In short, it is undisputed that the Father was not able to see BB for 51 days and that one-half of that time was the...

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