E.S. v. S.S.
| Decision Date | 18 March 2019 |
| Docket Number | xxxxx |
| Parties | In the Matter of a Child Custody Proceeding Under Article 6 of the Family Court Act, E.S., Petitioner, v. S.S., Respondent. |
| Court | New York County Court |
Elizabeth Johanns, Esq., Bronx, New York, for Petitioner
Monica Eskin, Esq., Bronx, New York, for Respondent
Katherine Tracey, Esq., Bronx, New York, for the Subject Children
Petitioner, father of the subject children, filed a petition for modification of an order of custody under Article 6 of the Family Court Act. Respondent, mother of the subject children, contests Petitioner's modification request. Attorney for the children B.S. (10/10/03) and H.S. (04/28/06) does not support the petition for modification. The court conducted an in camera with the subject children on December 8, 2017 and trial was held on December 19, 2017, March 5, 2018, May 7, 2018 and May 11, 2018.1
Summary of Arguments:
Petitioner seeks to modify a prior order of joint custody, to grant him sole legal and physical custody of the children. Petitioner argues that Respondent is unfit to parent due to her interference with his relationship with the children, constituting parental alienation.2 Petitioner acknowledges that although it may be traumatic to remove the children from Respondent's care, it would be more detrimental to them in the future if they remain in her care because they would not develop the psychological milestones or interpersonal skills essential to being functioning adults. Petitioner further argues that he believes Respondent and the children are in a "cult" under the maternal grandmother's rule and that this environment is not in the best interest of the children.
In opposition, Respondent contends that Petitioner failed to establish a change in circumstances as required to modify a prior order of custody.3 Respondent argues that she complied with all court orders and produced the children for visits with Petitioner. However, that the children on their own decided they no longer wished to visit with Petitioner. Lastly, Respondent argues that a change of custody should only be made if the totality of the circumstances warrants a change in custody and such change is in the best interest of the children.4 As the children have not seen Petitioner since 2015, removing them from Respondent's care would be traumatic and not in their best interests. Respondent requests that the court deny the modification of custody.
Attorney for the child (AFC) also opposes Petitioner's request for modification of custody on the basis that Petitioner has failed to allege (and prove) a change in circumstances. AFC argues that the demise of the relationship between Petitioner and the subject children is due to his own culpability by voluntarily reducing his parenting time, which he fails to recognize. AFC further argues that Petitioner provided no evidence of how he intends to repair his relationship with the children should his modification petition be granted and that given the circumstances, his request for sole custody is unrealistic and not in the best interests of the children.
The court issued orders of filiation for both children on September 15, 2010, after admission by both Petitioner and Respondent, acknowledging Petitioner as the father of the children. On March 28, 2011, the parties entered into a final order of custody on consent, granting them joint legal custody with primary physical custody to Respondent and parenting time to Petitioner. Per the agreement, Petitioner's parenting time was scheduled for Fridays 3PM to 8PM and Saturdays 12PM to 8PM, along with daily telephone contact, holiday parenting time and summer vacation.5
After filing the modification petition on October 20, 2014, due to work obligations, Petitioner voluntarily reduced his parenting time to alternate Fridays 3PM to 8PM and every Saturday from 12PM to 8PM. Thereafter, Respondent expressed opposition to any visits between Petitioner and the subject children but did not give any reason. Over the next 2 years, it became increasingly difficult for Petitioner to exercise his parenting time with the children and he voluntarily reduced his parenting time as follows: in June 2015, parenting time was reduced to Saturdays only from 12PM to 4PM; in September 2015, parenting time was reduced to Saturdays only from 12PM to 3PM, and; in January 2016, parenting time was reduced to Saturdays only from 12PM to 2PM. At that time, the court also ordered therapeutic visits with a social worker in addition to the Saturday visits; however, Respondent refused to sign the contract for the agency directed to supervise the visits and no visits were held.
Over the course of the next two years, Respondent became increasingly oppositional to court directives and orders both in and out of court, citing the children's wishes against visitation with Petitioner. Yet, Petitioner was opposed to seeking any recourse from the court in response to Respondent's actions, including the filing of a contempt motion or motion for temporary change in custody or extended visitation. All parenting time between Petitioner and the subject children was ceased in June 2016.
Petitioner testified that he is the biological father of the subject children. He and Respondent agreed to have joint legal custody of the children and weekly parenting time for Petitioner. During his weekly parenting time, he would pick up the children from their home and take them to the movies, Chuck E. Cheese and to visit relatives. He would purchase clothing, toys, computer gadgets and other gifts for the children. Petitioner provided photographs of his parenting time with the children dating from 2011-2012 engaging various activities together.6
Petitioner testified that he began having issues with his parenting time in 2014. The maternal grandmother would not allow the children to keep the gifts that he purchased for them describing the children's demeanor as sad when they had to return the gifts. Thereafter, he was restricted from seeing the children altogether. He would arrive at Respondent's home to pick up the children, however no one would answer the door bell or the telephone. When this would occur, Petitioner would seek assistance from the police and make a report. On one occasion, when the police were called to the home, the maternal grandmother opened the door and the police interviewed the children. Observing that the children were crying, Petitioner canceled the visit because he felt it was "too much" for the children. On another occasion, when Petitioner arrived at the home, the maternal grandmother, Respondent and the children exited the home without word, entered a car and left the area. Petitioner again engaged the assistance of the police to enforce the order of visitation, by having them return to the home with the children. The totality of these incidents caused Petitioner to file the pending petitions.
After the filing of the instant petitions, the location for pickup and drop off of the children was changed to a precinct. Sometime in 2015, the children stopped speaking to Petitioner and refused to participate in any activities during their visits. The children would refuse to get out of the car, eat or drink for the duration of the visits which were scheduled from 12PM to 8PM. Petitioner further testified that the children would often dress in seasonally inappropriate clothing. For example, when the weather was warm, the children would be produced dressed in sweat suits or old clothing. At the last visit he had with the children, after they were dropped off at the precinct at start of his visit, they refused to leave the precinct with him. Petitioner has not had any parenting time with the children since approximately 2015 or 2016.
On cross examination by Respondent's attorney, Petitioner acknowledged that Respondent produced the children per the court order. He also testified that he is aware the children want to remain in Respondent's care. However, despite not seeing the children since approximately 2016, he is still seeking sole legal and physical custody as he believes it is in their best interest.
On cross examination by the AFC, Petitioner testified that he had additional photographs of the children from 2013, 2014 and 2015 but did not provide those to the court as they did not depict the children as happy. He also testified that he believed the maternal grandmother is mean, violent and abusive to Respondent and that she has also threatened his life on numerous occasions.
Petitioner testified that if he was granted sole custody, each child would have their own bedroom and closet at his home, which is prepared for them. He would also enroll the children in therapy and provide Respondent with daily access to them. When probed about how he would encourage the children to eat and get out of the car as he has been unable to do so in the past, Petitioner testified that he would tell the children "if they want to see Respondent, they will eat and drink." Petitioner testified that the children were coached not to eat, drink or get out of his car, but if granted custody, he would no longer have those issues.
Respondent testified that she is a born-again Pentecostal Christian. She attends services with the subject children on Sundays at 10AM and 12PM and other various times depending on the week. She seeks to raise the subject children as God-fearing, virtuous, pure and educated.
Currently, the children are homeschooled through an accredited educational program, Calvert. B.S. (age 15) is in the 8th grade and studying pre-calculus, and H.S. (age 12) is in the 6th grade. The program provides textbooks for the children to use at home and has available online tutors. The subject children study from 8AM — 3PM and sometimes on Saturdays and the Respondent works with the children one on one. The subject...
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