Papers Numbered Summons, Petitions, Affidavit & Exhibits Annexed 1 Order to Show Cause, Affidavit & Exhibits Annexed 2 Emergency Order to Show Cause, Affirmation & Exhibits Annexed 3 Notice of Cross Motion, Affirmation & Exhibits Annexed 4 Affidavit in Opposition 5 Affirmation in Response 6 ADDITIONAL INDEX NUMBER V-31808-18/19C Upon the foregoing papers, the Order to Show Cause by Petitioner Jennifer M. R. (hereinafter “Mother”), for the temporary modification of the parties’ Judgment of Divorce, is denied, and the Motion and Cross Motion by Respondent Lauren M. B. (hereinafter “Ex-Wife”), for the immediate return of the Child, counsel fees and sanctions, is granted in part in accordance with the following decision. The Mother and the Ex-Wife were married in a same-sex marriage ceremony on October 8, 2010 in the State of Connecticut, and are the legal parents of the subject Child, born in 2011. Marital difficulties unfortunately ensued, prompting the parties to separate and execute an all-encompassing Marital Settlement Agreement dated March 5, 2013, with the assistance of counsel, resolving the issues of the Child’s custody and visitation, maintenance, child support to be paid by the Ex-Wife to Mother, and equitable distribution. The Ex-Wife then commenced an action for divorce against the Mother in New York County Supreme Court in 2016, and the matter was eventually settled. By Judgment of Divorce dated April 4, 2018, the Supreme Court (Sattler, J.) dissolved the parties’ marriage based on the irretrievable breakdown of their relationship and incorporated, but did not merge with, the Settlement Agreement, thereby awarding the parties joint legal and physical custody of the Child subject to a full and detailed parental access to each party, including alternate weekend visitation, holiday visitation and weeks during the summer. In relevant part, the Settlement Agreement also provides, in Article 3 and 13, as follows: The parents shall discuss all material issues related to the Child * * * far enough in advance so that meaningful discussion between the parents may take place before a decision needs to be made. If, after such discussion, the parents are unable to agree on a significant issue concerning the Child, the provisions of Article 13 shall apply. [Article 13:] The parties agree to strive to resolve in good faith any dispute about the meaning, implementation, modification or other application of this Agreement between themselves. Should the parties be unable to resolve any such dispute between themselves, they agree to meet with a mutually agreed-upon mediator for up to two hours to attempt to reach a resolution, with the parties sharing such fees equally. Each party shall make herself available in a timely manner for such meetings. The request for mediation shall be made of the other party in writing, so as to provide a date for retroactivity. In the event that they are unable to resolve their dispute in mediation, either party shall have the right to adjudicate such issue(s) in dispute, and to sue for any amounts in default or any other appropriate relief, and the successful party in any such suit or proceeding shall be entitled to receive from the other party and be reimbursed by said party for reasonable counsel fees, expenses and costs to be set by the Court in the same lawsuit. During the pendency of the matrimonial action, the Mother moved for permission to relocate with the Child to New Jersey, which application was denied after a two-day relocation hearing by Supreme Court (Sattler, J.) on July 21, 2017. Notwithstanding that ruling, the Mother shortly thereafter moved with her new fiancée to Sicklerville, New Jersey; the Ex-Wife remained with her female companion at the marital residence in Brooklyn, New York. It should be noted that since the 2018 entry of the Judgment of Divorce, the Mother had filed no less than three unsuccessful applications to modify the Judgment in order to obtain sole custody of the Child, and the latest matter was eventually transferred to and dismissed by the Kings County Family Court (Mulroy, J.) on September 29, 2018. Undeterred, by Petition for Modification dated March 15, 2019, the Mother commenced the instant proceeding against the Ex-Wife in Kings County Family Court, again seeking to modify the Divorce Judgment to obtain sole custody of the Child to be able to live in New Jersey. At the appearance date of May 7, 2019 before Referee Jennifer Mitek, the Ex-Wife moved to dismiss the Mother’s Petition for failure to establish a prima facie case for modification, the Referee heard from both parties and appropriately dismissed the Mother’s Petition due to a lack of a sufficient change of circumstances. Despite this ruling, the Ex-Wife declined to withdraw her Modification Petition for sole custody to her, prompting the appointment of an Attorney for the Child. The Mother then filed yet another separate Petition for Modification dated June 24, 2019. On November 19, 2019, the parties and all counsel appeared before the Referee. Again, in spite of the parties’ back and forth, the Judgment of Divorce’s provisions of custody and parenting time were left undisturbed. An Order appointing a Forensic Evaluator was issued in the meantime. The matter was adjourned for further proceedings to February 25, 2020, and then administratively adjourned to May 19, 2020 for a conference and an update on the Forensic Order. Unfortunately, in March 2020, the United States became enveloped in the public health crisis of the Coronavirus Pandemic. The Mayor of the City of New York and the Governor of the State of New York declared a public emergency on March 7, 2020, and thereafter signed the “New York State on PAUSE” Executive Order, which “assures uniform safety” for the public. Among other things, the Executive Order prohibits non-essential businesses from operating, non-essential gatherings and advises individuals to take precautions by social distancing, limiting travel, wearing cloth face coverings and using precautionary sanitizing practices. The Order currently extends until May 15, 2020 (see https://coronavirus.health.ny.gov/newyork-state-pause). In addition, New York City nonessential stores, sports stadiums and public school buildings are closed until the end of the school year and children are remote learning at home (https://www.schools.nyc.gov/) In light of the current Pandemic, on March 14, 2020, the parties agreed in writing to temporary modify their schedule under the Agreement to alternate their parenting time with the Child to be every two weeks with each parent. In order to reduce the number of transitions between the parties’ homes, the parties commenced that Modified Schedule on or about March 22, 2020. Under the Modified Schedule, the Child has been in the custody of the Mother since March 18, 2020, and the parties had agreed to exchange the Child to the Ex-Wife on April 5, 2020. Instead, by Order to Show Cause with Immediate Relief dated April 6, 2020, Mother moves — yet again — for the immediate grant of temporary sole custody and final decision making authority to her, effectively modifying the Divorce Judgment. She argues that the Child should remain living with her in New Jersey during the Coronavirus Pandemic because her State and County pose significantly less risk of infection and transmission than New York, as reflected by Executive Orders of the New York Governor, declaring a state of emergency for entire State of New York, with its thousands of infections and deaths due to the Coronavirus. In her papers, the Mother argues that the Ex-Wife lives in the Coronavirus “hotspot” of Brooklyn which is dangerous for the Child and should “obtain shelter in New Jersey” to visit with the Child; Mother offers to return the child support payments made to her to defray Ex-Wife’s travel and other expenses. In fact, the Mother refused to return the Child at the arranged date to Ex-Wife, who immediately filed a Police Incident Report against the Mother. As a result of Mother’s actions, the Ex-Wife filed an Emergency Order to Show Cause dated April 7, 2020, seeking a Writ of Habeas Corpus for the Mother to immediately return the Child to the Ex-Wife and for enforcement in accordance with their Modified Schedule, maintaining that Mother has willfully and unlawfully withheld the Child from her in violation of the Judgment of Divorce, the only order that exists between the parties concerning custody of the Child. The Ex-Wife argues that the Mother is merely using the Coronavirus risks as just the latest subterfuge to misappropriate her custody of the Child. Since the Mother threatened to file another action for the same relief in New Jersey, the Ex-Wife also applies for the Court to issue a declaration that New York is the Child’s “home state” under the Uniform Child Custody Jurisdiction & Enforcement Act (see Domestic Relations Law §76). Given the request for a Writ, the matters were referred to the Undersigned, who signed the Order to Show Cause on April 7, 2020, granting the Writ and ordering the Mother to immediately return the Child to the Ex-Wife for the duration of her parenting time under the Modified Schedule, and deemed New York as the “home state” for jurisdictional purposes. Thereafter, the Ex-Wife filed a separate Cross Motion dated April 13, 2020, seeking a direction that the Mother shall pay reasonable counsel fees, costs and expenses to her as sanctions for her frivolous and vexatious conduct pursuant to 22 NYCRR Sec. 130-1.1. In her Affirmation in Response, the Attorney for the Child supports the Mother’s application for the Child to temporarily reside in New Jersey based on the Child’s statement to her as to his preference and as a safer location during the pendency of the Coronavirus Pandemic. The Child reported to her that he was doing well, was participating in remote learning and was speaking with the Ex-Wife regularly over the phone. According to the AFC, the Child “made clear that this preference was not a reflection on his relationship with either parent, but that the current arrangement of splitting the weeks between the households leaves him feeling unsettled.” These arguments notwithstanding, the Court disagrees with the Mother and the Attorney for the Child. In order to modify an existing custody and visitation order in the absence of an agreement between the parties, “there must be a showing of a subsequent change in circumstances so that modification is required to protect the best interests of the child” (Matter of Newton v. McFarlane, 174 AD3d 67 [2nd Dept. 2019], quoting Henrie v. Henrie, 163 AD3d 927, 928 [2nd Dept. 2018]; see Matter of Feliciano v. King, 160 AD3d 854, 855 [2nd Dept. 2018). Although "not necessarily determinative, the child's expressed preference is some indication of what is in his or her best interests and, in weighing that factor, a court must consider the age and maturity of the child as well as the potential for influence having been exerted on the child" (Matter of Nevarez v. Pina, 154 AD3d 854, 856 [2nd Dept. 2017]). However, “[h]earings have been denied and modification requests dismissed, where the allegations were conclusory and unsubstantiated” (Matter of Newton v. McFarlane, 174 AD3d at 77; see Matter of Feliciano v. King, 160 AD3d 854 [2nd Dept. 2018]). Applying these principles to the case at bar, the Mother’s Motion for the immediate transfer of sole custody to her without a hearing must be denied. As a threshold matter, the parties were required by Judge Sattler’s Divorce Judgment to engage the services of a mediator in order to resolve any dispute between them concerning the Child. It is undisputed that the Mother has failed to even attempt to follow that procedure by providing proof that she contacted the Ex-Wife in writing about her visitation concerns for mediation, or engaged the mediator to be mutually paid by the parties. That procedure was set up by the parties themselves with Judge Sattler’s imprimatur, precisely to prevent the type of unrelenting and contentious litigation previously — and currently — engaged in by the parties, especially by the Mother. Aside from failing to comply with that contractual precondition, the Mother has failed to demonstrate a change in circumstances warranting an immediate change in the custody arrangement. The Mother has failed to cite anything specific which the Ex-Wife has done to place the Child at risk of exposure to Coronavirus or otherwise. To the contrary, the parties were communicating and have developed an appropriate plan for the Child to lower his exposure of contracting the disease by reducing the number of exchanges. The Child is being transported back and forth by car, and it has been the Mother who has had the option of staying in Brooklyn, which is something she usually does when she has parenting time with the Child during week. Although the Mother makes much of the fact that New York is a “hotspot” of Coronavirus cases, she lives in New Jersey which is second in the Nation in terms of infections and wherein the New Jersey Governor, only two days before the Governor of New York did, also declared a State of Emergency on March 9, 2020. In any event, the Court trusts the parties’ judgment with respect to the Child, as evidenced by their mature March 2020 emails, and will require that they comply with the government directives in terms of enforcing social distancing, using cloth face coverings and gloves for the Child, avoiding contact with vulnerable populations, and using precautionary sanitizer practices. Nor are the Child’s wishes to remain in New Jersey controlling in this Court; they are only one of the many factors to be examined in a custody determination (see Matter of Nevarez v. Pina, 154 AD3d at 856). Given the unprecedented times that we are living, the Child may be reflecting a desire for stability and peace in reaction to the Mother’s unrelenting pursue of his custody by her filing of several, almost consecutive Petitions. The Child may be having a difficult time understanding the current situation and “need[s] all of the adults in their lives to behave in a cooperative, responsible and mature manner” (Tolchinsky, A. & Wertheim E., Family and Dispute Resolution in Pandemic Times, NYLJ, April 21, 2020, at 3, col 1). The parents’ behavior during the Pandemic and while the case is pending in court will be relevant to the Referee in her ultimate custody determination (see Sunshine, J., COVID-19 and Future Custody Determinations, NYLJ March 27, 2020, at 3, col 1). As recently expressed by the Appellate Division, Second Department: The existence of custody litigation, by itself, can create trauma and uncertainty for the child, as well as trauma, uncertainty, and expense for the parents. Repetitive applications for modification brought by disgruntled litigants in order to harass or vex their former spouses or domestic partners are not unheard of. Litigation over established court-approved child custody and access arrangements can be unsettling and traumatic for children, particularly for children of sufficient age or maturity to comprehend, and worry, about potentially significant changes in their daily lives, such as what home they live in, what family members they live with, what schools they go to, what friends they have, and what activities they undertake. The prospect of having to be interviewed by a judge, consult with counsel, be examined by a forensic clinician, and deal with parents who are embroiled with each other in litigation, can create significant anxiety and stress, which, by itself, may be harmful to a child’s development (Matter of Newton v. McFarlane, AD3d). Just like in that case, Mother’s failure to comply with the condition precedent to commence a proceeding under the Settlement Agreement coupled with her unsubstantiated and conclusory allegations against the Ex-Wife are insufficient to warrant a temporary change of the custody and visitation arrangement (see Matter of Chichra v. Chichra, 148 AD3d 883, 885 [2nd Dept. 2017]; Matter of Ali v. Hines, 125 AD3d 851, 851-852). To the contrary, Judge Sattler’s Judgment of Divorce appears to have been — and continues to be — in the best interests of the Child (see Matter of Henry v. Tucker, 157 AD3d at 893; Matter of Torres v. Ojeda, 108 AD3d 570, 571. No change is, therefore, warranted and Mother’s Motion must be denied. In accordance with the foregoing, this Court hereby denies the Mother’s Order to Show Cause and grants the Ex-Wife’s motion for enforcement and the immediate return of the Child in accordance with the Modified Schedule. The Writ is marked satisfied as the Child was returned to the Ex-Wife, and is hereby disposed. Insofar as the Ex-Wife additionally cross-moves for legal expenses, costs and sanctions under the Settlement Agreement, such are hereby referred for determination to the Referee who is presiding over this matter. Suffice it to say that the Settlement Agreement already provides for the payment by the victor of all reasonable counsel fees, costs and expenses. The foregoing constitutes the Decision and Order of the Court. NOTICE: 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 the 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. Order mailed on (specify date[s] and to whom mailed):_____ Order received in court on (specify date[s] and to whom mailed):___ Dated: April 22, 2020
