DECISION AND ORDER After trial, and for the reasons set in the accompanying decision, it is HEREBY ORDERED, ADJUDGED AND DECREED that the child’s father D.C., (hereinafter “the father”) is granted sole legal and physical custody of the subject child (hereinafter “the child”). All decisions concerning the child’s medical care, education and religion shall be made by the father. M.S. (hereinafter “the mother”) is granted parenting time as specified herein. Factual Background On January 3, 2017, the father filed a Writ of Habeas Corpus. On January 5, 2017, the child was produced to the attorney for the child and the Writ was deemed settled. On January 3, 2017, the father filed a petition for custody of the child. On January 5, 2017, the mother filed a custody petition for the child as well as a family offense petition against the father. On that day, the court issued a temporary order of protection on behalf of the mother only. On January 31, 2017, the father filed a petition for visitation. On May 2, 2017, the mother voluntarily withdrew the family offense petition. The cross custody petitions as well as the visitation petition are the only matters addressed in this decision. The Court has weighed the testimony, character, and temperament of the Parties, as well as the documentary evidence submitted by the Parties, and placed on the record. Based on the totality of the circumstances, the Court finds that there is a sound and substantial basis in the record to make the following findings and conclusions of law. Based on the evidence adduced and placed on the record the court finds that the Parties were never married and lived together until late December 2016, when the child was fifteen (15) months old. Based on the evidence adduced at trial, neither party have issue from any other relationship. At the time of the child’s birth, the father was employed as a union carpenter. Where according to his testimony, he worked for over five (5) years prior to the child being born. The mother testified that she has been employed for approximately two (2) years, as a property manager and that she is attending Long Island University in downtown Brooklyn. It appears from the testimonial evidence that the mother lives with her parents and receives either direct, or indirect financial support from her parents. The evidence showed that the parties cohabitiated at the father’s residence, located in Richmond County, Staten Island, New York, from approximately one month prior to the child’s birth until December, 2016. Prior to that time the parties cohabitiated at the father’s parent’s residence. The mother testified that in January, 2016, she took the child with her on vacation to Florida. The mother testified that since January, 2016, she and the subject child have been residing in the home of the child’s maternal grandparents located in Brooklyn, New York. The child’s medical insurance provider is medicaid through the mother’s public assistance budget. Neither party nor child presented any health issues, or concerns. In considering questions of custody, the Court must make every effort to determine what is in the best interest of the subject child, as well as what will best promote the welfare and happiness of the child. See Eschbach v. Eschbach, 56 NY 2d 167 (1982). See also Ebert v. Ebert, 38, NY 2d 700 (1976). In reaching a decision with respect to custody, the Court is aware that no one factor is determinative, and that all of the relevant factors, must be considered. In making a determination with respect to the issue of custody, among the factors that the Court may consider is the availability of the parent seeking custody. Which parent has assumed the role of primary care giver, the mental and emotional stability of the parents, and whether the quality of the home environment appears to provide the child with a stable living environment. In reaching this determination, the Court is required to consider the totality of the circumstances, and the existence of any one factor is not determinative. This Court is mindful of its responsibility to also consider not only the ability of each parent to provide for the child’s material needs, but also the particular needs of the child, and which parent is best able to nurture and support the emotional needs and intellectual progress of the child. The Court appreciates that the subject child is very young, and at this juncture it is not possible to determine, if the child has, or will develop any special needs which will require specific services. The evidence did not indicate that the child at the time of trial had any particular needs that were not being addressed. In consideration of these factors, this Court finds that it is in the best interest of this child to grant to the father a final order of sole legal and residential custody of the subject child. As noted above, the Court had the unique ability to assess the character and credibility of both parties. The decision to grant the father a final Order of sole legal and residential custody is based on the testimonial and documentary evidence placed on the record, and guided by what is in the best interest of the child. The Court found the testimony of the father to be credible and consistent. The child resided with both parties from his birth until he was fifteen (15) months old. The evidence showed that the child, mother and father had been residing in the home of the father as a family since the child’s birth until the mother took the child and moved to her parents home in Brooklyn. The child’s intellectual and emotional needs appear to be met by both parents. The father testified that he has a stable job as a union carpenter where he makes $60 an hour and receives benefits. The father testified that he had been trying to place the child on his medical insurance however, was not able to because he did not have the child’s social security card. The father further testified that the mother “hid the child’s social security card from him, so she could claim him and get government benefits”. The father then stated he went to the social security office to get his own copy of the child’s social security card and was in the process of enrolling the child on to his medical insurance. The father testified that he also owns a party entertainment business, wherein he employs people to work for him so that he is available in the evenings and weekends for the child. The father testified that his mother lives up the block from him, is not employed, and is willing and able to watch the child when the father is working. The record shows that the father has three (3) siblings whom all visit with the child on Tuesdays at the father’s home. The father’s home appears to offer the child a stable living environment. According to the testimony, it is clear that the father is more than able to be the primary care giver for the child. In reaching this determination the Court was mindful that weighing the factors relevant to any custody determination “requires an evaluation of the credibility and sincerity of the parties involved” Anonymous 2011-1 v. Anonymous 2011-2, 136 A.D. 3d 946 ([2nd Dept,] 2016). The Court finds the mother’s testimony to be inconsistent, scattered, evasive and purposely vague. The mother testified that in January 2016 she took the child on vacation to Florida with her and that she did not inform the father that she and the child were going on vacation because “it was a last minute thing” and when she returned from the trip she moved into her parent’s home also without informing the father. The record shows that upon the father filing the Writ of Habeas Corpus the mother returned to New York and produced the child to court on January 5, 2017. The mother then filed a family offense petition on that same day. According to the father’s testimony, following the filing of the family offense petition he did not see his child for 2 months. The father testified that he “called her family and friends to try and get them to reach out to her” and only after going to court and the court ordering a visitation schedule was he able to see his son again. The Court notes the court ordered visitation schedule was issued on February 14, 2017. On cross examination, when asked if she ever informed the father of the name of the child’s daycare, the mother responded “im pretty sure I did”. When asked “is it true that you never told the father the location of the day care”, she responded “that I’m not sure”. When asked if her father’s name and not the subject child’s father’s name was on the pick up list at the day care, the mother responded “most likely”. (see trial transcript of January 11, 2018 at page 15). Additionally, the mother testified that on one occasion the father was returning the child to her from his parenting time and called her to tell her he was sick and wanted to return the child later on. The drop off time was 6 a.m. at the mother’s residence. The mother testified that she objected to the father returning the child late that day and that she then called the police to report the father. The mother testified that the father returned the child at approximately 6:29 a.m. that day and the police were there waiting for him. The mother also testified that is was the only time she called the police to make a complaint against the father, although she alleges domestic violence had occurred between them in the past. The mother testified that if she was granted sole custody she would allow the father to have more parenting time. When asked to specify she testified “the week that he does not have him, then he could see him. Just no overnight visit because then I feel like that becomes a conflict in the morning”. She further states that it is an issue because the baby has to wake up early in the morning and that she was not agreeing to have the paternal grandmother drop off the child later on in the day. The mother also testified that when asked by the father if the child could attend his Aunt’s graduation, she states “I believe I had him that weekend and I said no” “Because, I think I was doing something with him that day” and then testified that she didn’t remember what they were doing that day (see trial transcript of January 12, 2018 at page 44). Finally, when asked if she could remember any instances since the court proceeding started where she allowed the father to visit with the child outside of the schedule set by the court, the mother responded yes “for a birthday party for her cousin”. This Court notes that the father’s petition for custody was filed on January 3, 2017 and the final day of testimony was on January 12, 2018. Therefore, throughout the duration on this case, the mother granted the father one (1) additional visit outside of the court ordered schedule, during a function for her family, where she was also in attendance. The mother’s testimony leaves this Court hard pressed to believe that the mother would foster a relationship between the father and the child. A custodial parent’s interference with the relationship between a child and the non custodial parent is deemed an act so inconsistent with the best interest of the children as to, per se, raise a strong probability that the offending party is unfit to act as custodial parent (see Matter of Purse v. Crocker, 95 AD3d 1216, 1217, 944 NYS2d 648 [2012]; Young v. Young, 212 AD2d 114, 122-123, 628 NYS2d 957 [1995]). This Court finds that during the time the child has been in the temporary custody of the mother, the mother has refused to encourage and foster meaningful contact between the child and the father and will continue to do so in the future. This Court finds that conduct to be adverse to the child’s best interest. The evidence clearly showed that granting to the father a final order of sole legal and residential custody would be in the best interest of the child. The evidence shows that the father can and does provide the child with a stable and nurturing home environment. Additionally, this Court finds that there was evidence adduced which demonstrated the father’s willingness to foster a meaningful relationship between the child and the mother. Moreover, the father’s testimony demonstrated that throughout this proceeding, he maintained contact with the mother’s extended family, even taking the child to spend holidays with them, even when the mother was not there. His actions demonstrated that he has an interest in maintaining the relationship between the child and the mother, as well as her extended family. The evidence showed that the child had consistently resided with the father since birth and appeared to be doing well until the mother unilaterally decided to take the child and go to Florida and then move in with her parents in Brooklyn. The evidence shows that the father has stable employment, and is able to contribute to child’s financial needs. The evidence shows that the mother has obstructed the father’s access to the child. She by her own admission, took the child to Florida without ever informing the father. The mother testified that she called the police on the father when the father called her to inform her that he was sick and requested to bring the child to her a little late. The mother admits denying the father’s request to have his mother drop off the child to her so the child did not have to wake up at 5 a.m. The mother admits that she denied the father request for him to bring the child to his sister’s graduation. The mother testified that she would encourage the father having more time with the child however her actions have proven otherwise. The father currently has parenting time with the child every Tuesday from 3 p.m. to 6 a.m. on Wednesdays and on alternate weekends Friday at 2:00 p.m. until 8 p.m. on Sunday. (See trial transcript of July 14, 2017, at page 30 and 36). The mother did not to testify as to any safety concerns that she has with respect to the father’s overnight access to the child. The mother’s sole objection to the father having additional overnight parenting time with the child is that the child being dropped off at 6 a.m. was not working for the parties. The evidence established that both the father and the mother have been a constant presence in the life of the child and they have been promoting his emotional and intellectual growth. See Rosenberg v. Rosenberg, 145 A.D. 3d 1054 ([2nd Dept.,] 2016). However, as stated above, this court finds that if granted sole custody, the mother would not encourage and foster meaningful contact between the child and his father. PARENTING SCHEDULE Based on the forgoing, the mother shall have the following parenting time with the subject child: IT IS HEREBY ORDERED, ADJUDGED and DECREED that the child’s biological mother, M.S, shall have a Final Order of Visitation, with parenting time with the child as follows: The mother shall have overnight parenting with the child on the first and third week of each month, commencing on Thursday at 3:00 p.m. or after daycare/school until Friday drop off at daycare/school. The mother may pick up the child from the day care/school if the child is attending daycare/school and drop off shall be at the police precinct closest to the residence of the father unless otherwise stated in this Order. If the child is not in school all pick up and drop off will be at the precinct closest to the residence of the father. In addition, the mother shall have parenting time on even years with respect to the following holidays: Christmas day from 12:00 p.m. to 9:00 p.m., New Years day from 12:00 p.m. to 9:00 p.m. as well as the child’s birthday from 12:00 p.m. to 9:00 p.m., unless the child is in attendance at school, in which instance, the mother’s parenting time shall commence no later than 3 p.m. and conclude at 9:00 p.m. The mother shall have parenting time on odd years with respect to the following holidays: Easter Sunday from 12:00 p.m. to 9:00 p.m., Thanksgiving Day from 12:00 p.m. to 9:00 p.m. The mother shall be notified by the father with respect to subject child’s school, religious and extra-curricular progress, and the mother shall be permitted to participate in and attend such events. The mother shall have access to all educational and medical records, and providers including but not limited to teachers, counselors, as well as health care providers with respect to the subject child. In addition to the aforementioned parenting time, the father shall always have father’s day with the child, and the mother shall always have mother’s day with the child. The holiday visitation schedule shall always take precedence over the regular visitation schedule. All clothing that accompanies the child shall be returned with the child at the end of the visit. The mother shall have two non consecutive weeks of parenting time with subject child during the summer. The parties are to determine which two weeks the mother will exercise her summer parenting time no later than the 30th day of May each year. Only substantial medical reasons will be considered sufficient for postponement of parenting time. If the child is ill and unable to spend time with the mother a makeup parenting time must be scheduled. If the mother cancels one of her scheduled parenting times for any reason, there will be no makeup of parenting time unless the parties agree otherwise. The mother’s parenting time shall not adversely affect the school, religious or extra curricular activities of the child. In the event that the mother is unable to exercise any of her parenting time as set forth herein, she must give the father as much notice as possible, to prevent both inconvenience to the him, and disappointment to the child. The parents will not say anything, or knowingly allow others to say things in the presence of the child that would take away the child’s love and respect for the other parent. Each party shall exert every reasonable effort to maintain free access and unhampered contact, pursuant to this Order, between the child and the other party. Neither party shall do anything which may estrange the child from the other party, or injure the child’s opinion of the other party. The parties shall use all reasonable efforts to foster a feeling of affection between the child and the other parent. Neither party shall disparage the other party or his or her family or friends to the child, nor shall either party do anything that would hamper the free and natural development of the child’s love and respect for the other party. Neither party shall relocate outside of New York City, except upon application to the Court, or the express written, signed and notarized consent of the other party. The parties may agree to modify any of the visitation provisions herein, provided that the changes are put into writing, signed by both parties and notarized. Any changes that the parties do not agree on can be made only by applying to the Court and proving that there has been a “change in circumstances” which necessitate the change. Before applying to the Court, the parties may agree to try to resolve their dispute through mediation or other means. Neither parent shall take the child outside the United States, without leave of Court or without the acknowledged and notarized written consent of the other parent. In the event either party removes the child from the United States without a court order permitting same, or the written, acknowledged and notarized consent of the other, the parent remaining in the United States shall be deemed to have been awarded sole legal and residential custody prior to said removal, such that the removal of the child from the United States shall constitute custodial interference as defined by New York State and Federal Law. Based on the foregoing it is ORDERED: The father, D.C., is granted sole legal and residential custody of the subject child, J.C. The Petition of the mother, M.S., seeking custody of the subject child is hereby dismissed. The foregoing constitutes the Decision and Order of the Court. Dated: May 22, 2018
