Suarez v. Williams
| Decision Date | 26 March 2013 |
| Citation | 23 N.Y.S.3d 533,50 Misc.3d 990 |
| Parties | Ricardo SUAREZ and Laura Suarez, Petitioners, v. Melissa WILLIAMS and Ernesto Suarez, Respondents. |
| Court | New York County Court |
50 Misc.3d 990
23 N.Y.S.3d 533
Ricardo SUAREZ and Laura Suarez, Petitioners,
v.
Melissa WILLIAMS and Ernesto Suarez, Respondents.
Family Court, Onondaga County, New York.
March 26, 2013.
Fortuna S. Habib, Esq., for the petitioners.
Melissa Williams, William J. Kurtz, Esq., Ernesto Suarez, Steven C. Buitron, Esq., for the respondents.
Patrick J. Haber, Esq., for the child.
MICHELE PIRRO BAILEY, J.
Petitioners, Ricardo and Laura Suarez (hereinafter " Grandparents") filed a petition on June 20, 2012 against their son, Ernesto Suarez (hereinafter "Father") and Melissa Williams (hereinafter "Mother") seeking custody of their grandchild, (DOB: x/x/2002). The Respondents were served with the petition, appeared with counsel and entered denials. The child was assigned an Attorney for the Child to represent his position and interests.
The Court has taken judicial notice of all prior proceedings involving this family and notes that prior to the filing of the Grandparents' petition, the Father had filed two separate petitions in Onondaga County under Docket No. V–7833–11 seeking to modify an Order of Custody/Visitation, dated May 9, 2006. Father's first petition to modify visitation was filed on November 16, 2011. Mother was served and initially appeared pro se, expressing concern that Father was driving the child around while he had a suspended license and that there was a MRSA outbreak in the Father's home. Thereafter, Mother
retained Scott Micho, Esq. and, on April 18, 2012, Father filed an Amended Petition for Modification of Custody, alleging in part that the child did not live with the Mother, but lives with the paternal Grandparents. The Father further alleged that the child has attended school in the district where his paternal grandparents live since kindergarten, and that they take him to all doctor's appointments, oversee his schooling and attend all school meetings and functions. Father alleged that Mother had no substantive involvement with the child though she exercised visitation and collected child support from him. During the April 20, 2012 court appearance on that petition, Father's attorney expressed concern that Mother would remove the child from his school district and transfer him to the Liverpool School District where she lives. Mother, with counsel present, agreed to leave the child in his school until the end of the school year. The matter was scheduled for trial on July 9, 2012; however, on that date, Petitioner withdrew his petition in light of the filing of the Grandparents' petition.
Thereafter, on July 13, 2012, Father filed a second Petition for Modification which was ultimately withdrawn on August 28, 2012.
Father's modification petitions sought to modify an Order of Custody/Visitation, dated May 9, 2006 and entered by the Oneida County Family Court. The Order was entered by stipulation in response to the filing of an original custody/visitation petition (Docket No. V–1161–06) by the Father, who had been living in Massachusetts for an extended period of time. During the proceedings held on that petition on April 27, 2006, Mother represented to the Court that the paternal grandparents had helped extensively with the child as they reside in the area and that she intended to move to Barneveld in the summer. Father indicated that he stayed in Barneveld at his parents' home when he visited the area. Mother and Father stipulated to an order of joint legal custody with primary physical residence with Mother. The Order further provided for reasonable visitation as the parties could agree, with leave to Father to petition for visitation in Massachusetts when the child turned six (6) years old.
On the date of the custody/visitation stipulation (April 27, 2006), Mother filed a petition seeking child support from the Father (Docket No. F–2156–06). On May 17, 2006, Mother represented to the Court that she worked at two (2) jobs—one full time at MetLife and one part time at American Building Maintenance,
and that she carried the child on her medical insurance policy.
On June 16, 2006, Mother advised the Oneida County Family Court that she had left employment at American Building Maintenance because her Mother had a stroke. On July 28, 2006, Mother represented to the Court that Grandmother paid for the child's daycare because she cannot afford it. Mother acknowledged that Father visited once or twice a month and the child stayed at the Grandparents' house during such visits.
Five years later, on September 29, 2011, Father filed a petition in Oneida County seeking Modification of the Order of Visitation. On October 6, 2011, that petition was dismissed without prejudice, on the Court's motion, insofar as the Mother and child resided in Onondaga County.
The instant petition, filed by the Grandparents, alleged that at the time that the 2006 Order of Custody/Visitation was issued between Father and Mother, the child resided with the Grandparents and at no time since has the child resided with either the Father or the Mother. Grandparents allege that the child resided with them from when he was 8 days old until May 1, 2012, when Mother took the child after a Court appearance and refused to allow him to continue to reside with the Grandparents.
Grandparents further allege that they have attended to the child's every need from healthcare to education to financial care, and that Mother has provided no financial assistance although she was receiving child support from the Father. Grandparents contend that Mother and Father have left all responsibility for the parenting of the child to them. Grandparents allege that it is in the best interests of the child for custody to be awarded to them.
The trial in this matter was held on November 26, 27, 28, 29 and 30th and December 3, 4, 5, 6 and 7th. Prior to the commencement of the trial on November 26, 2012, Attorney Kurtz was substituted as counsel for Mother. In addition, Father advised the Court that he consented to the relief requested by his parents, the Grandparents. The Court heard from the
following witnesses: Mother, Grandfather, Beverlee L. (1st grade teacher at Roberts School), Teresa C. (retired 2nd grade teacher at Roberts School), Christine F. (grandparents' next door neighbor), Megan P. (teacher aid at UCP Daycare), Sherri F. (Vice Principal at Porter Elementary), Janet K. (Principal of Roberts School), Grandmother, Kara K. (2nd
grade teacher at Roberts School), Diane P. (school nurse at Roberts School), Ava D. (Teacher's Assistant at Roberts School), Father, Preston C. (friend of Mother, Mother's two daughters S. and J., Christine W. (Mother's aunt), Michael C. (Mother's friend), Constance C. (Officer Manager for Jim C.'s employer), Jim C. (Mother's boyfriend/fiancé) and Heather M. (Mother's sister). A number of exhibits were also received and the Court conducted a Lincoln Hearing with the subject child. Following the trial, counsel submitted memoranda of law, the last being received by the Court on January 7, 2013.
The Court has had the unique opportunity to observe the parties and witnesses and to assess their demeanor and credibility. Based upon the record as a whole, in consideration of the required quantum of proof, and after careful and due deliberation, the Court makes the following determination.
The evidence in the record established that the child began living with the Grandparents in August 2002 within ten (10) days of his birth. Mother and Father had taken the infant to the New York State Fair and, upon learning of the parents' plan to take the child to an evening concert, the Grandparents (who were at the Fair) offered to and did take the child home with them. Thereafter, the child never went to live with the Father and did not spend any significant periods of time in Father's physical custody. For her part, Mother never retrieved the child to live permanently with her, although she did exercise parenting time regularly including overnights and extended periods of time. Mother never exercised her right to physical custody of the child as granted by the 2006 Order of Custody/Visitation until May 1, 2012 when, after a court appearance concerning Father's modification petition, Mother removed the child from the Grandparents' home and did not return him.
In the Fall of 2003, Grandmother enrolled the child in daycare at UCP in Utica. The Grandparents were solely responsible for paying the costs of daycare and, except for intermittent occasions, they routinely transported the child. Grandparents regularly attended daycare events and activities for the child.
Megan P. was a teacher at the UCP daycare in Utica. She testified that the Grandparents primarily transported the child to and from daycare while he was in her classroom from eighteen (18) months until 3 years old. To the best of her knowledge, he was living with the Grandparents and she would provide private babysitting...
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