R.A. v. A.L.A. (In re a Custody/Visitation Proceeding Article 6 of the Family Court Act)

CourtNew York Family Court
Writing for the CourtCaroline P. Cohen, Judge
Citation2022 NY Slip Op 50547 (U)
PartiesIn the Matter of a Custody/Visitation Proceeding Article 6 of the Family Court Act v. A.L.A., Respondent. R.A., Jr., Petitioner,
Decision Date30 June 2022

2022 NY Slip Op 50547(U)

In the Matter of a Custody/Visitation Proceeding Article 6 of the Family Court Act

R.A., Jr., Petitioner,

A.L.A., Respondent.

Family Court, Kings County

June 30, 2022

Unpublished Opinion

File No. 2XXXXX

Attorney for the Subject Child: Miechia Gulley, Esq.

Attorney for Respondent Mother: Victor M. Urbaez, Esq.

Caroline P. Cohen, Judge


Petitioner Father R. A., Jr. ("Petitioner") filed a petition seeking to modify the prior final custody and visitation order by granting him full legal and physical custody of the Subject Child N. A. ("the Subject Child").

2015 Final Order of Custody and Visitation

On or about April 16, 2015, Petitioner and A. L. A. ("Respondent," and together, "the parties") entered into a final order of custody and visitation on consent ("2015 Order"). The 2015 Order granted Respondent full physical and legal custody of the Subject Child. See 2015 Order, dated April 16, 2015. Petitioner had alternating weekend visitation from Friday at 6:00 p.m. to Sunday at 6:00 p.m. See id. The 2015 Order directed Petitioner to pick up and drop off the Subject Child curbside from Respondent's home. See id.

2020 Petition to Modify the Prior Final Order and Writ of Habeas Corpus

On or about September 2, 2020, Petitioner filed a petition to modify the 2015 Order, seeking sole custody of the Subject Child. The petition alleged that the Subject Child currently resided with him, that he would provide the Subject Child with a better home environment and is better equipped to provide for the Subject Child's emotional needs. Petitioner further alleged that the Respondent "told [the Subject Child] and [Petitioner] that she no longer wants [the Subject Child] living with her. [The Subject Child] feels uncomfortable living with [Respondent.]" See Petition, dated September 2, 2020.

The parties and the attorney for the Subject Child, Miechia Gulley, Esq. ("AFC"), appeared before Hon. Jacqueline Williams on September 30, 2020. During that appearance, Respondent stated that she no longer wished to have custody over the Subject Child. The matter was adjourned to the following month. Judge Williams issued an order permitting the Subject Child to reside with Petitioner until the following court date.

By way of counsel, Respondent filed a Writ of Habeas Corpus ("Writ") on or about October 28, 2020. Respondent also served and filed a motion seeking to dismiss the underlying custody petition for failure to state a cause of action. See Motion, dated October 28, 2020. In her affidavit, Respondent stated, "if I uttered any words or conducted myself in any way to infer or suggest that I consent to [Petitioner] having custody of [the Subject Child]" Respondent "unequivocally" does not consent. See id. Petitioner opposed the motion through counsel and alleged that Respondent repeatedly told the Subject Child that she no longer wanted custody of her, and the Subject Child no longer wanted to reside with Respondent. See Petitioner's Opposition to Respondent's Writ, dated November 10, 2020.

Oral arguments on the Writ and Respondent's motion took place on November 17, 2020. The AFC and Petitioner's counsel opposed the Writ, stating that returning the Subject Child to Respondent's home is not in the Subject Child's best interest, in that Respondent allegedly alienates the Subject Child from Petitioner, and Petitioner is better attuned to the Subject Child's emotional and intellectual needs. See Order, dated November 17, 2020. The AFC further argued that Subject Child does not want to reside with Respondent. See id. The Court ultimately granted the Writ based on the 2015 Order, as it gave Respondent, not Petitioner, full custody of the Subject Child. See id. The Court conferred with counsel and determined that Kings Court Family Court had jurisdiction over this matter despite the fact that Respondent resides in New Jersey.

The Court issued several different temporary orders regarding custody and visitation in advance of trial. On November 24, 2020, the Court ordered that Petitioner was to have weekend visitation with the Subject Child. See Order, dated November 24, 2020.

Petitioner was to pick up the Subject Child at Petitioner's parents' home in Brooklyn on Fridays at 6:00 p.m., and Respondent was to pick up the Subject Child from Petitioner's parents' home on Sundays at 6:00 p.m. See id.

At a conference on January 5, 2021, [1] the AFC made an application for the most recent order to be revised to allow the Subject Child to spend some weekends with Respondent, as the Subject Child enjoys spending time with Respondent's side of her family. The Court revised the November 15, 2020 order to allow for such flexibility and ordered that the Subject Child could spend all or part of up to two weekends a month with Respondent. See Order, dated January 5, 2021. The Subject Child was to notify the parties 48 hours in advance of such a change. See id. At that conference, the AFC expressed concern that the parties were not communicating well. Additionally, the AFC and Petitioner and both expressed concern that Respondent used the Subject Child's cell phone to send text messages to Petitioner under the guise of being the Subject Child.

At a conference on February 10, 2021, parties and counsel endeavored to settle the petition. Petitioner's counsel proposed that Respondent retain physical and legal custody and Petitioner have weekend visits. Also under this proposal, the Subject Child could request partial or full weekend visits as she sees fit up to two weekends a month with Respondent. Respondent declined to settle, as she did not want to grant Petitioner the ability to have visits with the Subject Child every weekend. Abruptly, the Respondent then stated that she wanted to give Petitioner custody of the Subject Child. Respondent was argumentative and disruptive for the remainder of the appearance.

At a conference on July 16, 2021, parties and counsel discussed ongoing issues with visitation. The AFC represented that Respondent would not permit the visit to move forward if Petitioner was late to pick up the Subject Child. The AFC further alleged that Respondent would take the Subject Child's cellphone and not allow her to communicate with her father. Respondent refuted these allegations, alleged the AFC "lied," and demanded another AFC be appointed to represent the Subject Child. Respondent then alleged numerous reasons why the current AFC was unfit to continue representing the Subject Child. Respondent claimed that it was improper for the AFC to speak with Petitioner about the ongoing proceeding and the AFC did not actually speak to the Subject Child. Respondent further claimed the Subject Child did not actually want to visit Petitioner, then conversely that Subject Child wants to live with her and visit with Petitioner, that the AFC and Petitioner's counsel were working together to make changes against the Subject Child's wishes, and lastly that the AFC and Petitioner's counsel "just" want to take the Subject Child away from her.

Also at this appearance, the AFC stated that she learned Respondent filed a petition in New Jersey seeking custody of the Subject Child. Respondent neither affirmed nor denied this assertion. The Court issued an order requiring Respondent to produce any and all information regarding the commencement of a family court action seeking custody of the Subject Child in New Jersey. After application, the Court issued a revised visitation order, stating that the Subject Child has overnight weekend visitation with Petitioner at least two weekends a month, subject to the Subject Child being able to change the visitation schedule on 48 hours' notice. The Court further ordered Respondent to drop off the Subject Child at the paternal grandparents' home in Brooklyn on Fridays, and Petitioner drop off the Subject Child at Respondent's home in New Jersey on Sundays. See Order, dated July 16, 2021.

In or about July 2021, Court Attorney Marcia Schiff e-mailed Respondent and counsel a Trial Scheduling Order. The Trial Scheduling Order stated that witness lists, exhibits and exhibit lists must be exchanged by October 5, 2021. See Trial Scheduling Order, dated July 20, 2021.

In or about September 2021, Petitioner's counsel filed a notice informing the Court that Petitioner was proceeding pro se and was no longer represented by counsel. See Consent to Change Attorney, dated August 28, 2021.


The trial took place virtually because of the ongoing COVID 19 pandemic on November 19, 2021, December 1, 2021 and December 6, 2021. On the first day of trial, Respondent informed the Court that she retained counsel. Petitioner waived his right to counsel and was allocuted on the same. See Transcript, November 19, 2021, pp. 19-20.

The parties, counsel for Respondent, AFC and a Spanish interpreter were present for all days.

Evideniary Issues

On the first day of testimony, counsel for Respondent informed the Court that he sent copies of the proposed exhibits to the AFC, Petitioner, and Court Attorney Marcia Schiff. Counsel for the Respondent also stated that he uploaded the proposed exhibits to the Court's electronic filing system. See Transcript, November 19, 2021, pp. 9-11. The aforementioned was required pursuant to the Court's Trial Scheduling Order. See, Trial Scheduling Order, dated July 20, 2021. The Court informed Respondent's counsel that Ms. Schiff did not receive the proposed exhibits, and the proposed exhibits were not uploaded to the Court's electronic filing system. See Transcript, November 19, 2021, pp. 10-13. Petitioner also stated that he did not receive the proposed exhibits or lists, as required by the Trial Scheduling Order. The AFC confirmed that she previously received the proposed exhibits, exhibit list and witness list. See Transcript, December 1, 2021, pp. 12-13. The AFC also stated that the e-mail sent...

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