DECISION AND ORDER This matter comes before the Court on a modification petition, filed July 25, 2017, by KOREE B., (hereinafter referred to as the “Petitioner Father”) which sought to modify a Judgment of Divorce granting sole custody of the subject children to KENYA D. (hereinafter referred to as the “Respondent Mother”). On July 13, 2015, Special Referee Lorraine Martinez Ross (Bronx County Supreme Court), granted the parties a Judgment of Divorce upon the default of the Petitioner Father. The Judgment of Divorce awarded the Respondent Mother sole custody of the subject children KAMAR B. (DOB July XX, XXXX) and KIMANI B. (DOB January XX, XXXX) (hereinafter referred to as the “subject children”) The order failed to address the issue of visitation nor establish a parenting time schedule between the Father and the children. The Petitioner Father filed the within petition seeking to modify that order and grant him sole physical and legal custody of the subject children, alleging that he has been the primary caretaker for the children since the divorce was finalized. On September 20, 2017, the Petitioner Father, his attorney, Myra E. Shapiro Esq., the Attorney for the Children, Ade Agbayewa, Esq., and the Respondent Mother, and her attorney Maricel Gonzalez, Esq., signed a Stipulation of Reference for this Court Attorney Referee to “Hear and Determine” the within matter. After several conference dates, the parties were unable to reach an amicable resolution to the case; thereafter the case was adjourned for fact finding. Fact finding commenced on June 26, 2018 and continued until February 14, 2019, when testimony concluded. During the fact finding hearing the following witnesses testified: The Petitioner Father, the Paternal Grandmother and the Respondent Mother. Additionally, the court conducted an in-camera Lincoln hearing of the subject children. FINDINGS OF FACT The Court had the opportunity to observe the demeanor of all the witnesses; to hear their testimony; and to assess their credibility. The following findings of fact are made based on the material, credible and relevant testimony and evidence presented during the fact-finding hearing. Testimony of the Petitioner Father Mr. B. testified on direct examination by his counsel Myra Shapiro, Esq. that since the issuance of the Judgment of Divorce on July 13, 2015, and even before the divorce was finalized, the children have resided with him most of the timewithin a week. He testified that the Respondent Mother leaves the children with him for several days at a time; that she does not spend time with them; and that the children have not resided at any other address except his, in St. Albans, Queens, New York. He testified that when the parties separated in 2013, the Mother moved to Rochdale Village (Jamaica, Queens, New York) but that the subject children never lived there and they would visit their Mother at her home sometimes, but not consistently. The Father further testified that the children were enrolled in school in St. Albans and took a school bus to and from his home every morning. He explained that between 2015 and 2018, he provided for the daily care of the children including preparing all their meals, ensuring school attendance, providing homework assistance, and facilitating play dates. He did admit that his mother, the Paternal Grandmother assisted, but denied that the children’s Mother assisted in any way with those needs. He further alleged that from 2013 when they separated through 2018, the Mother provide minimal clothes and shoes for the children and minimally contacted them. He testified that once the court proceedings started, the Mother started taking the children with her more often, but the children would still be at his home every day. He alleged the Mother kept the children away from him from October 2017 to December 2017 because she was mad at him. Mr. B expressed that he had concerns for the way the children were being treated. He alleged that the Mother was using excessive corporal punishment against them, including on at least one occasion in October 2017 (Note: after the filing of this petition). The Mother was alleged by the Father to have hit their daughter causing a mark, after he was told, she was allegedly dragged across the floor by her mother during a trip to Disney World. The Father’s counsel attempted to admit a video into evidence, however the proper evidentiary foundations were not stated, causing objections to its entry into the record being sustained. The alleged video evidence was never entered into evidence, such that no consideration could be given to it. Additionally, he alleged the children told him that the mother was hitting them often between July 2015 and July 2018 because the mother was drinking. Those allegations were never corroborated either during the proceedings. A photograph of an old healing scar on the daughter’s shoulder was entered into evidence by the Petitioner’s counsel, but there was no credible and admissible corroboration to find the Mother responsible for causing that injury. Mr. B. admitted that before and after the Judgment of Divorce in July 2015, he would minimally speak to the Mother. They had difficulty being cordial to each other, however he solely blamed the mother for that problem. He testified that he would try to call and text the Mother, but she would degrade him and curse at him sometimes in the presence of the children, so he would call the Mother’s brother to relay messages to the Mother or send messages through the children or the Paternal Grandmother. On cross examination by the Mother’s attorney, Mr. B. testified that the children always resided with him before and after the Judgment of Divorce. He also denied that the Mother would have the children with her overnight then drop them at his home early in the morning to catch the school bus. The Father did admit that the Mother is the parent who registers the children for school each year, but always used his address as their residence. He also admitted that by agreement the Mother solely tends to the children’s medical needs, including providing for their health insurance, and scheduling and taking them to their medical appointments. He admitted his work schedule (though he testified the hours and days off fluctuate every six months) prevents him from attending medical appointments and parent teacher conferences. On cross examination by the Attorney for the Children, Mr. B. admitted his reasons for filing a petition to modify the Judgment of Divorce to grant him sole physical and legal custody of the children. He testified that the children have lived with him their “whole lives”; He feels the Mother bullies the children, per the children; and that he is unable to do things because his money is “going elsewhere”. He expressed his anger at being mandated to pay $1,500 per month for court ordered child support, when he is providing for the children when they are in his care more than the mother. The Father testified that he would “leave custody the way it is” if the “Mother agrees not to take child support from him”. He further testified, that he could not understand why he should pay child support but rather that the “Mother should pay” him. Testimony of the Paternal Grandmother The Father’s attorney called the Paternal Grandmother Kathryn B. as a witness to support the Father’s allegations in this proceeding. The Paternal Grandmother testified that the children lived “consistently” in her home from July 2015 to July 2017 and prior to that time and would visit the mother periodically at her home in Rochdale Village. Ms. B. testified that between July 2015 and January 2018, the children lived with the Father except for a three-week period with the mother. She testified that the children go to sleep in her home and wake up in her home every day. Additionally, she stated that the parents do not communicate at all with each other and use her to relay messages to the other parent. She testified that the children caught the school bus from her home before and after the divorce and that she was the one to get the children on the bus in the morning and then receive the children afterschool from the bus (and her son helped as well). She testified that the Father is primarily responsible for tending to the children’s needs each day including feeding the children and tending to their hygiene needs. She testified to only assisting the Father occasionally. Additionally, the Paternal Grandmother testified when asked on direct that her granddaughter told her that her Mother caused the injury on her shoulder. Testimony of the Respondent Mother The Respondent Mother, Ms. D., testified on direct examination by her counsel Maricel Gonzalez, Esq. that since the issuance of the Judgment of Divorce on July 13, 2015, and even before the divorce was finalized, the children have resided primarily with her, except when they go to school and spend time with their Father and Paternal Grandmother. She testified that the parties separated in 2013 and she kept the children with her from then except for times they would stay with their father. She explained that the children would be dropped off at the Father’s home in the morning to get on the school bus and that they would be returned to the Father’s home where she would pick them up after work. She arranged for and paid for the private bus company to transport the children and the Father agreed with that arrangement. She testified that the parties were following that routine before and after the divorce. She testified that after the divorce in July 2015, the children stayed with her during the week except for the time before and after school and on most weekends when they would stay with their Father because of his work schedule. She stated sometimes the Father works on the weekend and the children stay with the Paternal Grandmother. Ms. D. additionally testified that she solely tends to the children’s medical needs and solely provides for their health insurance. She stated between July 2015 and January 2018 she took the children to all their extracurricular activities and paid for them. The Mother denied any excessive corporal punishment against the children. She explained the daughter’s injury on her shoulder as occurring when she accidently fell off the bed on vacation. She denied causing the injury. Additionally, she denied ever drinking to excess when the children are in her care. The Mother also denied disrespecting the Father in front of the children. She testified that they hardly communicate at all, but if they do it’s by text messages or emails and sometimes by telephone. She admitted to telling the Father that she wanted him to “die” by being “hit by a bus”. She stated the Father calls her a “lying bitch” and an “asshole” as well. She testified that she would use the Paternal Grandmother to communicate to the Father. Ms. D. additionally testified that between July 2015 and January 2018, the Father was not responsible for anything concerning the children except when they were with him after school or on the weekend. Upon cross examination by the Father’s attorney, Ms. Shapiro, Ms. D. testified that since September 2013, when the parties separated, the children lived with her and she would bring the children to the Father on the weekends, school breaks, and summers. She testified the children “went back and forth” during the week when school was in session. She stated that the Paternal Grandmother was the person to receive the children in the morning to put them on the bus for school. She testified the children ate breakfast at either her home or the Father on school days. The children ate dinner with the Father and later with the Mother at her home on school days. She had to be at work at 6:00am so the kids were dropped off early. She testified she would allow the children to spend the night during the week when they wanted to. The Mother did not dispute that the Father provides for the children when they are with him except for times that he is at work and the Paternal Grandmother watches the children during the week and on weekends, since the Father’s work schedule changes often. Ms. D. testified that the child Kamar changed schools for middle school and the Father arranged for a neighbor to take the child to school without informing the Mother. The Mother admitted that the Father’s address was used for school record purposes so the children would not have to change schools. She further admitted she changed the children’s home address on the emergency “blue” card for the schools in 2016, when she filed for child support. The Father tried to change it back in 2017 when he filed a petition requesting a downward modification of the child support order. When asked about the children’s medical records, the Mother admitted that they reflect the Father’s address as they always did from before and after the divorce, and she did not feel it was important or necessary to change that information. The attorney for the children, Mr. Agbayewa, had the opportunity to cross examine the Mother as well. The Mother testified that while the children were attending school, she would drop them at the Father’s home in the morning but was not sure if the Father was home or not. The Mother arrived to get them at 6:00pm from the Father. The children would spend from afterschool (2:30pm — 2:45pm) when they got out of school and the bus dropped them at the Father’s home until the Mother arrived to take them home. The Mother denied that the Father spends more than 50 percent of the time with the children and that was the arrangement before and after the divorce. In Camera Interview with the Subject Children The Court conducted an In-Camera interview (Lincoln hearing) with the subject children, Kimani (age 11) and Kamar (age 12) in the presence of Ade Agbayewa, Esq., the Attorney for the Children. Based on the Court’s interview and the position of the children articulated by their attorney, the Court finds that the children testified partially credibly. Though the court found the testimony partially credible, it was also very “guarded” and at times contradictory. The children clearly felt pressured by both parents to speak favorably about them. Based on their confidential testimony, the court finds that there existed the strong possibility that the father was exerting even more pressure on the children then the mother, to declare their allegiance to him and his position in this case. The testimony of the subject children is in no way the sole determining factor in making this decision, however, it was given weight and consideration in the Court’s decision rendered herein. See Lincoln v. Lincoln, 24 N.Y.2d 270, 299 N.Y.S.2d 842 (1969). MODIFICATION LEGAL ANALYSIS In Cook v. Cook, the Appellate Division Second Department held that, “A party seeking the modification of an existing court-ordered child custody arrangement has the burden of demonstrating that circumstances have changed since the initial custody determination such that modification is necessary to ensure the children’s best interests.” 142 AD3d 530,533, 36 N.Y.S.3d 222, 226 (2d Dept 2016). See also Bullard v. Clark, 154 AD3d 846 (2d Dept 2017); Bondarev v. Bondarev, 152 AD3d 482 (2d Dept 2017); Musachio v. Musachio, 137 AD3d 881, 882-883 (2d Dept 2016); and Matter of Klotz v. O’Connor, 124 AD3d 662, 662-663(2d Dept 2015). Additionally, the court has also held that in determining whether a Judgment of Divorce should be modified, the paramount issue before the court is whether, under the totality of the circumstances, a modification of custody is in the best interests of the [children]“. See Honeywell v. Honeywell, 39 AD3d 857, 858 (2d Dept 2007); Friederwitzer v. Friederwitzer, 55 N.Y.2d 89 (1982); Klat v. Klat, 176 AD2d 922 (2d Dept 1991); Matter of Robert T.F. v. Rosemary F., 148 AD2d 449 (2d Dept 1989)). “To determine whether modification of a custody arrangement is in the best interests of the children, the court must weigh several factors of varying degrees of importance, including, inter alia, (1) the original placement of the children, (2) the length of that placement, (3) the children’s desires, (4) the relative fitness of the parents, (5) the quality of the home environment, (6) the parental guidance given to the children, (7) the parents’ relative financial status, (8) the parents’ relative ability to provide for the children’s emotional and intellectual development, and (9) the willingness of each parent to assure meaningful contact between the children and the other parent.” See Kuncman v. Kuncman, 188 AD2d 517 (2d Dept 1992); Anonymous 2011-1 v. Anonymous 2011-2, 136 AD3d 946, 948 (2d Dept 2016); Cuccurullo v. Cuccurullo, 21 AD3d 983, 984 (2d Dept 2005); Young v. Young, 212 AD2d 114 (2d Dept 1995). See also Matter of Ellen K. v. John K. 186 AD2d 656 (2d Dept 1992) which held that the original placement of the child is among the pertinent factors to consider in modifying custody “because of the stability it assures in the child’s life, which factor is weighty but not absolute or conclusive.” While the express wishes of a child are not controlling (see Matter of Ross v. Ross, 86 AD3d 615 (2d Dept 2009); Matter of Bond v. MacLeod, 83 AD3d 1304 (3d Dept 2011), the child’s wishes should be considered and are entitled to great weight, where, as here, the child’s age and maturity would make his[or her] input particularly meaningful (see Matter of Coull v. Rottman, 131 AD3d 964 (2d Dept 2015); Matter of Rosenblatt v. Rosenblatt, 129 AD3d 1091 (2d Dept 2015); Koppenhoefer v. Koppenhoefer, 159 AD2d 113 (2d Dept 1990). CONCLUSION After a review of the testimonial and documentary evidence presented during this hearing; and after assessing the credibility of the three witnesses that testified, the court finds that Mr. B. has NOT met his burden of proof in establishing by a preponderance of the evidence that it is in the best interest of the subject children for the Judgement of Divorce dated July 13, 2015 to be modified to grant him sole physical and legal custody of the subject children. The Court finds that there is no change in circumstances within this case requiring a change in the present order of custody granted by the Supreme Court, Bronx County, upon the default of the Father. The current arrangement of the children spending time with both parents, though not an equal split in time, created an issue such that the court could not determine an exact percentage of time spent with each parent as the Paternal Grandmother also spends a great amount of time during the Father’s time with the children when they are not in school. The court considered all the various factors to be analyzed for a modification, as stated in the Kuncman case. Both parents agreed that the children spend time between both parents from 2013, through the divorce, and continued through the filing of this petition. They differ as to the exact amount of time spent with each parent. This arrangement of shared parenting time was maintained before and continued after the Judgment of Divorce. The Court considered the children’s wishes and the quality of the parent’s home environment. Regarding the home environment, the Father’s living situation remained stagnant through the years including sharing one bed with the children (male and female, the Father sleeping at the base of it). This arrangement existed prior to and after the divorce. The Mother’s apartment changed in a positive way during the proceeding, providing more stability and comfort in the children’s sleeping arrangement. Both parents are fit and financially able to care for the children and provide for their emotional and intellectual development. At the time of the Judgment of Divorce they were as well. The court finds that nothing has changed in that regard. Although the Mother stopped the Father from seeing the children for two months during these proceedings because she was angry at the Father, this single poor decision does not warrant a change in custody. The behavior is not in any way condoned either. The parties must mutually find a better way to communicate and resolve disagreements between themselves…that continuous breakdown in communication before and after the divorce is beyond the jurisdiction of this court. However, the most compelling consideration by the court is the fact that the parenting time arrangement existed from the parties separated in 2013 and continues today with variations based on the work schedule of the parents. The other allegations of the Father regarding alleged corporal punishment were based solely on the uncorroborated hearsay testimony of the children. The Father failed to appear in his divorce to contest the terms proposed by the Mother. Once the divorce decree was granted, the Father neither appealed that court’s decision and order (judgement) nor filed any motions or requests to reargue the terms of the Judgment of Divorce. The Father acquiesced in the parenting time arrangement for several years until he filed this petition in 2017. It is undisputed that the Father filed this petition after the Mother filed a petition for child support and an order was granted for child support to be paid by the Father. Thereafter, the Father filed a petition requesting a downward modification of that child support order. The Father even admitted he would not pursue a change in custody if the Mother was to “drop” the child support he is required to pay. Of all the Father’s testimony, that was the most compelling and I believe the most credible. The burden of proof never shifts to the Respondent in a modification proceeding. The Court finds that the Father’s testimony was self-serving, at times contradictory and only partially credible. His testimony concerning his employment and involvement in the children’s life, also lack of involvement in other aspects of the children’s lives, existed prior to the Judgement of Divorce and continued throughout the divorce proceeding, which the Father chose to default in. Thereafter, it continued through the filing of this pending petition. As for the Mother, her testimony was self-serving, as well, and partially credible. However, the burden of proof in this proceeding is not on the Respondent to disprove the allegations, but rather on the Petitioner to prove his allegations. He has failed to do so. As for the testimony of the Paternal Grandmother, the court finds her testimony to be self-serving and partially credible as well. The court would find it difficult to believe the Father’s Mother would testify negatively against her son, although at times her testimony of the Father’s home and his availability for the children was inconsistent with and even contradicted the Father’s testimony. This testimony merely served as bolstering of the Father’s testimony and was given minimal weight in this decision. Based on the record at bar, and the court’s confidential interview of the subject children there existed the strong possibility that the Father was exerting pressure on the children to declare their allegiance to him, yet at the same time they felt an allegiance to their mother as well. The court finds that the children’s statements made in camera were the most credible and honest in this entire proceeding, though at times they also contradicted themselves. The Father gave one version, the Mother another version, and the children a third and even fourth version blending certain similar aspects of both of their parent’s versions. The Court could find the “truth” in between these various versions. Based on the foregoing facts and circumstances and in viewing this case in the light most favorable to the Petitioner, he has failed to meet his burden of proving that since the issuance of the Judgment of Divorce there has been a change in circumstances. The family dynamic of shared time between the parents occurred prior to the Judgement of Divorce and continued thereafter. There is no change in circumstances to warrant a change in physical custody. Additionally, prior to the divorce and thereafter, the Father does not get along with the Mother, and they both agree there is no communication between them except through a third party. The Court finds that prior to the divorce and continuing thereafter, the mother has tended to the children’s main educational needs and all their medical needs. Each parent tends to the children’s daily needs when they are in their care. The Father has also failed to prove a change of circumstances to warrant a change in legal custody. It is hereby ORDERED: Based on the foregoing findings, the within “Petition for Modification of an Order of Custody Made by the Supreme Court” is hereby dismissed with prejudice. The Judgement of Divorce dated July 13, 2015 shall remain in full force and effect. The Petitioner’s oral application during summation by his attorney, requesting a visitation order is denied under this petition. As the Petitioner Father defaulted in the matrimonial action, no order for visitation was granted. The Father is not without recourse he may file a petition for visitation forthwith or the parties may continue their shared parenting time arrangement. SO ORDERED PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE ATTORNEY FOR THE CHILD UPON THE APPELLANT, WHICHEVER IS EARLIEST. Check applicable box: Order mailed on [specify date(s) and to whom mailed] __ Order received in court on [specify date(s) and to whom given]: __ Dated: April 1, 2019 Jamaica, New York
