Scott M. v. Ilona M.

• Decision Date: 08 January 2013
• Citation: 967 N.Y.S.2d 870,2013 N.Y. Slip Op. 50114,38 Misc.3d 1216
• Parties: SCOTT M., Plaintiff, v. ILONA M., Defendant.
• Court: New York Supreme Court

38 Misc.3d 1216

967 N.Y.S.2d 870

2013 N.Y. Slip Op. 50114

SCOTT M., Plaintiff,

v.ILONA M., Defendant.

Supreme Court, Kings County, New York.

Jan. 8, 2013.

Joseph Soffey, Esq., Garden City, NY, Attorney for the Plaintiff.

Warren Stone, Esq., New York, NY, Attorney for the Defendant.

Elaine McKnight, Esq., Brooklyn, NY, Attorney for the Child.

JEFFREY S. SUNSHINE, J.

In New York State, the awarding of joint custody by judicial decision is extremely limited in light of the 1979 New York Court of Appeals decision Braiman v. Braiman, (44 N.Y.2d 584, 378 N.E.2d 1019, 407 N.Y.S.2d 449 [1978] ), wherein the Court held that

... joint custody is encouraged primarily as a voluntary alternative for relatively stable, amicable parents behaving in mature civilized fashion ( see, e.g., Dodd v. Dodd, 93 Misc.2d 641, 646–647,supra.;; Bodenheimer, pp 1010–1011). As a court-ordered arrangement imposed upon already embattled and embittered parents, accusing one another of serious vices and wrongs, it can only enhance familial chaos ...

Of course, whatever the ultimate disposition, it must be, as it has always been, in the best interest of the children ( see, e.g., Domestic Relations Law, § 240; Finlay v. Finlay, 240 N.Y. 429, 433–434 [Cardozo, J.] ) ...

There are no painless solutions. In the rare case, joint custody may approximate the former family relationships more closely than other custodial arrangements. It may not, however, be indiscriminately substituted for an award of sole custody to one parent. Divorce dissolves the family as well as the marriage, a reality that may not be ignored.

The matter before this Court, based upon the testimony of the parties, affords the Court an opportunity to grant joint custody to these parents.

Procedural History The Court is called upon to determine custody of the parties minor child. This matrimonial action was commenced on October 15, 2010. An order of consolidation of the Family Court petitions was signed by this court on November 10, 2010. Two (2) interim custody orders were issued by this court on consent of both parties. The last interim custody order dated December 16, 2010 provided for joint custody of the parties' child with residence alternating weekly with each parent commencing on Thursday until the following Thursday. The court conducted a bifurcated trial on the issues of custody and visitation on May 14, 16, and 18, 2012. The matter was thereafter adjourned for submission of post trial memoranda, written summations and minutes.

Findings of Fact

The parties were introduced to one another through a dating agency. The father traveled to Russia in 1999 to meet the mother and the couple later married in Virginia on June 15, 2000. The parties moved to New York in September of 2001. There is one child of the marriage, a son, who was born on September 28, 2007. There is a prior decision in this matter on pendente lite relief (Scott M. v. Ilona M., 31 Misc.3d 353, 915 N.Y.S.2d 834, 2011 Slip Op 21026 [NY Sup.Ct.2011] ).

The Issues The father seeks sole custody of the child. The mother seeks joint custody or in the alternative, sole custody. The father raises the mother's past drug use, the mother's alleged “unilateral parenting style”, and his flexible work schedule as basis for him to be awarded sole custody. On the other hand, the mother references the parties' effective cooperation in raising the child and the child's positive adjustment to the current equal access schedule to support her desire for joint custody. If this court determines that joint custody is not feasible the mother explains that her role as primary decision maker for the child as well as the father's failure to reform his use of marijuana constitute reasons why she, in the alternative, seeks sole custody.

Mother's Ecstacy Use

The father testified that the mother used the drug known as “ecstacy” beginning in the summer of 2008 and lasting until the summer of 2010. He testified that there were numerous weekends during this period wherein the mother abandoned the family to stay out late and attend parties where she used ecstacy. In support of his testimony, the father proffered a print out of the mother's Facebook message, which was written by the mother. In the message, dated August 2010, the mother asks another individual for ecstacy, using a pseudonym, and states that she will head to that individual's party directly after work. Also in the message, the mother writes “I probably just will come after work to your place. Because if I come home and then leave [the child] will be upset. He does not like [it] when I go out.”

The mother testified that she only began using ecstasy in 2010, not 2008 as the father suggests. She further testified that she did not attend the party which the father referenced via the Facebook message as an example of her poor parenting. More importantly, the mother expressed that she has improved her life. She testified that she confronted her prior drug use following the couple's separation. The mother explains that she completed a 10 month drug treatment program and that both throughout the program and after its completion, she consistently tested negative for drug and alcohol use. The mother testified that she no longer uses drugs.

Parents' Work Schedules

The father is a vice president of a major financial institution. To support his request for sole custody, he testified that his work schedule is flexible in that it allows him to be home with the child when he has visitation. The father stated that he works from home “five days a week when I have visitation.” The father also testified that when he is unable to be home, he employs a babysitter to care for the child.

The mother testified that she has obtained employment as a production coordinator for fashion. Her work schedule is Monday through Friday, from the morning until 7:00 p.m. When the mother is not at home and the child is not in daycare, the maternal grandmother is the child's caretaker. The father testified that he is concerned that the mother keeps the child out of daycare for no apparent reason when the mother has visitation with him. This concern is premised on prior actions of the mother. However, the mother testified that she only kept the child out of daycare on the occasions when she did not have to work. It was her desire to spend more time with the child since she was at home rather than to have the child spend the day in daycare.

Decision Making

The father is concerned that if the mother were awarded custody he would be excluded from participating in major decisions involving the child. The father testified that the mother makes unilateral decisions for the child, particularly in terms of health care needs. On one occasion, the father testified that the mother failed to consult with the father when she chose an out of network dentist for the child which resulted in “a lot of expensive dental work performed that cost [the father] a lot of money out of pocket.” This out of net work dentist was chosen based upon a recommendation of the child's regular dentist. On cross-examination, the father testified that the dental work was “needed” and that the mother chose an “excellent dentist.” His objection appeared to be premised on the cost.

The father also expressed a concern that the mother will not provide him proper access to his child. The father referenced a time prior to the pendente lite joint custody arrangement, during which the mother would not allow the father to call his son in order to wish him a happy birthday. Additionally, the father referenced the family court petition, which was filed after an alleged physical altercation in the marital home where the mother requested that visitation access be denied to the father. The mother explained that her statement in Family Court in 2010 about denying visitation access to the father was a statement made in response to a violent incident which caused her to flee from the martial home and seek protection. During cross-examination, the father denied this alleged incident of domestic violence. The mother stated, “I left the house after [the father] physically abused me in front of [the child] and strangled me in [the child's] bedroom and told me to get out of the house.” The mother explained that the child was “very scared” at that moment and that incident is what lead to her request for denial of visitation to the father in Family Court. The mother contends that since that time, the parents have worked cooperatively and she now finds it necessary for the father to play an important role in the child's life.

Moreover, while the father believes the mother disparages him in front of the child, the mother testified that she does not “say bad things about [the child's] father because [she does not] want [the child] to be hurt by [a] bad impression of his father.”

Despite the father's allegations of the mother's unilateral parenting, throughout the trial, neither party could identify a specific decision relating to the child upon which the parents could not ultimately come to an agreement during the past year and a half of the joint custody arrangement. In fact, the father testified that both parents have been able to share vacation and holiday time and that both parents are even able to spend time together with the child. The mother similarly testified that both parties have worked together in a cooperative fashion to ensure that the present joint custody arrangement is effective.

Several examples of the parties cooperative relationship were brought to the court's attention by both parties throughout the trial. The father testified that the parties went to museums and arcades together with the child. Of particular significance is the parents collaboration on educational matters for the child. Both parents participated in the selection of the child's new pre-K program. Together the parents toured the school and thereafter agreed it would be a suitable choice...