CHILD CUSTODY - THE EFFECT OF INCOME DISPARITY AND CHILD PREFERENCES

And note the last paragraph and footnote...IMHO, this is a well written decision, demonstrating the empathy which is a hallmark of Judge Sunshine.

VL v. DL, 2021 NY Slip Op 50502 - King Co. Supreme Court May 19, 2021:

"JEFFREY S. SUNSHINE, J.

This Court must determine if modification of a parenting agreement where parties enjoy joint custody is warranted based upon the clear desires of two teenage children where without a doubt the Defendant's economically superior ability has impacted the children.

The request is bolstered by the remarriage of the Defendant, the change in the Defendant's employment making him and his work from home spouse is more available for the children's needs and desires. The Defendant, supported by the children, is seeking to have residential parenting time changed to two weeks in a row with the Defendant and one week with the Plaintiff.

This dynamic presents the Plaintiff with a predicament. She must work full time to support herself and care for the children, and she does not have the resources of the Defendant and his new spouse to compete with meeting the children's economic and other desires. She cannot provide the children with the luxuries or the time that that other parent. She clearly operated under the assumption that good joint custodial parenting is allowing the other parent to step up to the plate to fill that void, only to find herself facing a calendar and diary allegedly documenting the greater period of time the children have been voluntarily spending with the father. Nor can this Court allow to go unnoticed that the request for a change in custody only comes before the court after the Plaintiff twice seeks enforcement of substantial child support due and owing in the form of a cross motion.

The Court cannot determine based upon the testimony adduced at trial if the Defendant did not pay the child support because he erroneously believed he should not have to because the children were spending more time with him. As opposed to the Plaintiff having not regularly sought the monies that she would waive same. The Plaintiff puts forth the argument that her return to the full time work force and the need to support her and the children' needs is the basis for the claim that Defendant should have more time with the children than the Plaintiff.

The matter was tried before this Court in a hearing conducted virtually due to the present pandemic emergency. On the record on July 2, 2019 this Court denied the Defendant Father's request for sole custody in as much as the parties continued for the most part to cooperate and act in the best interest of their children. The Court did though set the matter down for a hearing on the issues of parenting time given the specific requests of the Attorney for the Child. The Attorney for the Child asserted his clients were in support of the Father's application for expanded parenting time beyond the agreed upon parenting schedule.

The Plaintiff and Defendant were married in April 2003 and the parties have two children D.L. and E.L. Plaintiff commenced an action for divorce in 2011. The parties executed a Stipulation of Settlement in April 2012. According to the Stipulation of Settlement the parties shared joint legal custody and Plaintiff had residential custody. The parties' parenting time schedule was three-and-a-half days each. At the time of the execution of the Stipulation of Settlement, D.L. was eight years old and E.L. was five years old. At the present time, D.L. is seventeen years old and E.L. is thirteen years old.

Plaintiff's counsel called the Plaintiff as a witness to testify during Plaintiff's case on October 30, 2020 and November 18, 2020. Defendant's counsel called the Defendant and Defendant's wife (A.L.) as witnesses to testify during Defendant's case. Defendant testified on August 5, 2020 and September 22, 2020 and Defendant's Wife testified on September 24, 2020. The Attorney for the children did not call any witnesses. There were in camera interviews held with the children separately, virtually due to the pandemic emergency at an agreed upon location.

The Contentions

The Plaintiff asserts that the Defendant's request for a change of parenting time is wrongfully predicated upon a theory that she is not an adequate caretaker for the children and that he has more resources than she does to care for the children. Plaintiff argues and in fact the Defendant did at trial offer testimony regarding, the size of his residence, that his family members live nearby, that the Plaintiff lives nearby, that he is the primary caretaker to the children in regards to doctors and schooling and that the Plaintiff is not involved in the children's lives to the extent he and his wife are.

Plaintiff testified that from the time D.L. was born in 2004, she was a homemaker. After her separation from the Defendant in about 2012, she began a part time job during school hours. In 2015, after being essentially out of the workforce for more than 10 years, she began working full time. At that point, she needed childcare assistance part of the week. Since cheerleading was an activity the children had immediately after school. The Defendant and his family assisted in cheerleading activities. Plaintiff was able to pick the children up after work once her work schedule changed in 2018. Until then, Defendant's enrollment of the children in cheerleading, with her knowledge he coordinated transportation from the activity and Plaintiff welcomed the help without questioning Defendant's motive. She had no objection to either Defendant or someone [Family Members] at his direction picking up the children at 4:00 p.m. from cheerleading and bring them either to her home or his home. On September 15, 2018, Plaintiff started a new job where she had flexibility in her work hours. She thereafter was able to pick up the children on her days from cheerleading. Defendant asserts this was only because she was concerned about Plaintiffs seeking a change in custody.

The Plaintiff steadfastly maintains that she was the primary caretaker of the children from birth and that she was the one who provided the care of them prior to and after the divorce. The Defendant had previously worked in the restaurant pizza business at that time and even after the divorce she continued to be the primary caretaker. It also appeared to the Court that she exercised appropriate judgment and was credible in her assertion that she and the Defendant for the most part had an amenable relationship post-divorce when it came to the children. She lives in a smaller home, and her mother lives with her and the two children. When she initially returned to work full time, she was not able to transport the children to and from extracurricular activities and she welcomed the assistance.

Plaintiff denies that she in any way interfered with the Defendant's ability to have contact with the school as alleged by Defendant and asserted she allowed the children to visit with and stay with the Defendant while she was working. She vehemently denies that the children are not properly taken care of when with her.

The Plaintiff does assert that she cannot compete economically with the Defendant and his present spouse. The Defendant's new spouse works from home, that they have a pool which was very helpful for the children this past summer due to Covid travel restrictions, that she does not have as much room as they do in her home and that she does not have the funds to take the children on a family trip to Hawaii or Cape May, New Jersey like the Defendant did.

There was much testimony about the Defendant wanting to infringe on the Plaintiff's parenting time with the children and take the children to Cape May during her time this past summer and her refusal. The event was complicated by the Defendant unfortunately utilizing one or both children as a messenger in an attempt to convince the Plaintiff to allow them to visit.

As to an incident involving one of the children needing to be picked up from school due to a personal issue, Defendant asserts Plaintiff was not the parent who accomplished this but it was Defendant's present wife who was able to do so. Defendant posits that this is just one more instance why he and his present wife are more able to mee the children's needs. Plaintiff counters that the Defendant's wife works from home and the Plaintiff was at work that day and that both parties agreed that Defendant's wife is normally on the "blue card" and Plaintiff was not trying exclude her and was fine with her picking up the child. There was testimony regarding access or lack of access to the emergency contact card also known as a "blue card".

Plaintiff argues that the Defendant had an issue with E.L. getting a 30 on a test of the map of Italy when Plaintiff studied with her because the Defendant stated that she gets much better grades when studying with him but neglected to state that the entire class retook the test. Plaintiff further argues that it was not her fault for the child failing as the Defendant claims and the claims by the Defendant that the children getting higher grades in his care and he deserves more parenting time is insignificant.

Plaintiff stated that Defendant claims that the grades of the child dropped after the schedule reverted to a strict 50/50 time sharing post pandemic, with the implication being that the children being with the Plaintiff more caused their grades to suffer and that if the Defendant was really involved the Defendant would have noticed a drop in grades prior the end of the marking period.

Plaintiff testified that she was unable to take the children to medical appointments as Defendant claims because the Defendant withheld the insurance cards and by the time, he provided them he had changed the children's pediatrician. Defendant counters that the Plaintiff did not object as she trusted his opinion on the matter even though he deliberately held on to the insurance cards until after the switch of the doctors was made.

Plaintiff argues that Defendant claims that the parties switched the doctor together and that in the past he had made all the doctors' appointments and that prior to the cross motion the Plaintiff never appeared for any doctor's appointments is in error as the Plaintiff stayed home from the time the children were born and took them to all doctor's appointments prior to 2015.

Plaintiff posits that any change in grades is insignificant as that she is involved in the children's schooling as she made the choice to have the children go to school remotely during the pandemic instead of blended learning and she was able to structure the school days for the children during the remote learning. Plaintiff testified that she is also involved with the children's teachers and that she did not need to go to the student teacher conferences since the children were doing well and spoke to a teacher via telephone or by other means.

The Plaintiff argues that the Defendant's claims that the children do not shower at her house and are disheveled is not accurate as at times the children come from Defendant's house disheveled. The Plaintiff further argues that the children are 13 and 17 and they can take a shower whenever they want as the Plaintiff also purchases hygiene products for the children and the children's hair.

The Plaintiff testified that she has done the best under the circumstances. It is undisputed and that she refuses to speak with Defendant's new wife and denies allegations that she did not invite him and his family to the daughters sweet 16. She asserts that she is involved in the children's lives and monitors their schoolwork. Defendant apparently discounts Plaintiff's claims of economic need because she paid for an expensive sweet 16 for the older daughter.

Plaintiff testified with pride about her children and how she enjoyed spending time with them and provided insight into how they were two different children but certainly was proud of them.

Her testimony was credible that she wants the children to have a relationship with their father and that he has been of help when covering some of the extracurricular activity transportation because of her work schedule and she readily admits she does not speak with the Defendant's present spouse. She asserts that it is that same need to work and earn money which has prevented her from attending after school events and was the basis to welcome the Defendant's offers of transportation and attendance at events.

She denies that she has not been involved in the children's health care and has made as many appointments as possible.

Defendant testified that he has been employed in a union job for about 4 years and he is a "heat-controlled" mechanic. Defendant further testified that his base salary is $29.96 per hour which he asserts comes out to about $60,000.00 to $65,000.00 per year and that he earned $83,000.00 with overtime in the 2019 year.

Defendant testified that he is the primary caregiver of the children and is the parent who takes the children to their doctors' appointments, assists them with their schooling and meets all their other needs. Defendant elaborated regarding his caretaking of both children from when the parties divorced up and until the present. The Defendant further testified that he researched his daughter's doctors and that he was the one who helped with homework, projects, PTA, appointments, and extracurricular activities. He asserts that when the Plaintiff did make an eye doctor appointment for one of the children he was not notified, and he was the one who arranged for medical care when there was a need and sought alternatives to surgery.

Defendant testified that he attended all the children's parent teacher conferences and that the Plaintiff did not attend a single parent teacher conference until after his filing of the cross motion in 2018 and still she only attended one conference for one of the children. Defendant also testified that Plaintiff only started to pick up E.L. from cheerleading after the filing of the Cross Motion. Defendant's wife testified that the Plaintiff attended one out of at least 16 cheerleading competitions over a four-year period but only after the Cross Motion was filed.

The Defendant posits that there was a change in circumstance in October 2015 that caused the parenting time schedule to change from the Defendant having the children three-and-a-half days per week overnight to four to five overnights per week. The Defendant further testified that the schedule changed because D.L. wanted to join cheerleading and carpooling did not work out so Defendant picked up both children from school and brought them to his home and the children began sleeping at his home 5 night's per week.

Defendant testified that in 2015 he had the children between four to five overnights and the Plaintiff voiced no objections to the schedule after the change occurred and the Plaintiff did not take any steps to enforce that parties' Stipulation of Settlement. Defendant testified at trial and displayed a calendar to allegedly show the change in the parenting time schedule, which Plaintiff asserted was not totally accurate.

Defendant testified that the schedule reverted back to the three-and-a-half-day schedule in the Stipulation of Settlement after the current proceeding began and that after the change in parenting time schedule D.L.'s grades started to decrease in English, Algebra and Physical Education when she was spending more time in the Plaintiff's home.

It is conceded that during COVID-19 pandemic the parties again amicably changed the parenting time schedule so that the children would spend one week at each parent's home to avoid too much transportation between the homes. That when the children are with him during his week the children sit around the dinner table with him and his present wife to do homework. This is the schedule presently in effect.

Defendant believes that he is the parent who provides the superior home environment as the children each have their own bed, a desk, a couch bathroom, and there is a spare room where the children do their homework. Defendant went through great lengths to describe his large home and that the first floor has a kitchen, dining room, living room and den area and also described the backyard area which has a pool, with a wraparound porch and vegetable and fruit patch. The Defendant described the basement to show that the children have room to grow. In addition to having family members near his home, when he works some overnights at his job, the children are home with his present Wife. Defendant's present Wife testified that she makes sure the children do their homework, prepare for the next day and do house chores and that she bakes with them.

Both the Defendant and his present wife assert that when the children come to their home after being with their mother, they appear disheveled and that they do not have adequate toiletries at the Plaintiff's house. The Defendant's wife claims the children rush to the shower and appear not to shower when with the Plaintiff. The Defendant also asserts that he is more understanding of the needs of the children and that they identify more with him. The Defendant also asserted that the Plaintiff interfered with his ability to deal with the school because he was not on the "blue card". He placed great emphasis on the fact that he had greater insight into the children.

In summation (which is not evidence) the Attorney for the child argues that the evidence adduced at trial demonstrated that the Children love both parents equally, but enjoy spending time with their Father more than with their Mother and given their ages and levels of maturity, the children's feelings should be given great weight, and the Court should grant their request to spend more time with the Father.

The Attorney for the Child argues on behalf of his clients that the two-week/one week schedule would allow the children to remain with the Defendant more than the Plaintiff without deteriorating the relationship and bond with the Plaintiff as the Plaintiff works during the week and will have the children every other weekend on days she does not work.

The Attorney for the Child argued that the change in overnight schedule continued for multiple years with the Defendant keeping records as to how many overnights were had per parent and the father having a substantial amount more time. He further argued that the Plaintiff did not make any objections for years as to the new arrangement as the Plaintiff understandably had conflicts with her work schedule. The Attorney for the Child asserts that the Defendant's schedule is more flexible giving him more time with the children while the Plaintiff's schedule is stricter, and the Plaintiff made no effort to confront this point.

It is for these reasons the Attorney for the Child supports that the Defendant to be the primary caretaker of the children and even though the parties agreed to the Plaintiff being the primary caretaker originally and assumed the role originally of primary caretaker.

Counsel asserts that it is this change of circumstance that justifies the Court to set aside the original order. The Attorney for the Child argues that the modification that it is not only in the best interests of the children but is what works for this family and what the children want and supports the two weeks with Defendant schedule and one with the Plaintiff.

Defendant requests this Court award him residential custody of the children and the following parental access schedule: Two weeks from Monday through Friday with Defendant; One week from Monday through Friday with Plaintiff; and Alternating weekends.

Defendant requests the following holiday schedule: Christmas Eve overnight to Christmas Day every year; Alternate New Year holiday with Plaintiff; Palm Sunday and Easter Sunday every year; Winter and Spring break every year; and 4th of July every year.

The Attorney for the Child requests that Court issues the following: Modifying the Stipulation of Settlement to make the Father the residential custodial parent; Modifying the stipulation of settlement to change parenting time to the two week/one-week rotation in the favor of the Father; Since the Stipulation of Settlement does not specify holiday visitation time, the Court should modify the Stipulation in the following respects:

(a) Alternate the New Year's Eve/New Year's Day Holiday between the parties every year.

(b) Award the Father parenting time for winter and spring break every year.

(c) Award the Father Palm Sunday and Easter Sunday every year.

(d) Award the Father July 4th every year; and

(e) Award the Father Christmas Eve through Christmas morning every year.

Plaintiff is asking the Court to order that she have a two-week vacation over the summer.

It appears that the Plaintiff requests the Court entertain a holiday vacation schedule.

Conclusion

The Court in Matter of Connell-Charleus v Charleus, 140 N.Y.S.3d 752, 2021 NY [2nd Dept 2021] ruled that:

"A party seeking modification of an existing custody arrangement must show the existence of such a change in circumstances that modification is required to ensure the continued best interests of the child (Matter of Sidorowicz v Sidorowicz, 101 AD3d 737, 738; see Matter of Fargasch v Alves, 116 AD3d 774). While joint custody is encouraged as a voluntary alternative for relatively stable, amicable parents behaving in mature civilized fashion (Braiman v Braiman, 44 NY2d 584, 589-590), joint custody is inappropriate where parents have evidenced an inability to cooperate on matters concerning the child (see Matter of Schweizer v Jablesnik, 95 AD3d 1341; Matter of Edwards v Rothschild, 60 AD3d 675, 677). "A change from joint legal custody to sole custody by one parent is warranted where `the parties' relationship is so acrimonious that it effectively precludes joint decision-making'" (Matter of Schweizer v Jablesnik, 95 AD3d at 1342, quoting Matter of Picado v Doan, 90 AD3d 932, 933). Moreover, inasmuch as a court's custody determination is dependent in large part upon its assessment of the witnesses' credibility and upon the character, temperament, and sincerity of the parents, the court's exercise of its discretion will not be disturbed if supported by a sound and substantial basis in the record (see Matter of Shisgal v Abels, 179 AD3d 1070; Matter of Ruiz v Carie, 179 AD3d 1069; Matter of Pritchard v Coelho, 177 AD3d 887)"

There has been a change of circumstances the question is do they rise to the level of an unforeseen or unanticipated change. In the matter of Walter v Walter, 178 AD3d 991, 992 [2d Dept 2019], the Second Department stated: Modification of a court-approved stipulation setting forth terms of custody or [parental access] is permissible only upon a showing that there has been a change in circumstances such that a modification is necessary to ensure the best interests and welfare of the child. (Greenberg v Greenberg, 144 AD3d 625, 629, 41 N.Y.S.3d 49; see Hughes v Hughes, 131 AD3d 1207, 1208, 16 N.Y.S.3d 861; Anonymous 2011-1 v Anonymous 2011-2, 102 AD3d 640, 641, 958 N.Y.S.2d 181). The best interests of the child are determined by a review of the totality of the circumstances (see Eschbach v Eschbach, 56 NY2d 167, 171, 436 N.E.2d 1260, 451 N.Y.S.2d 658; Goldstein v Goldstein, 68 AD3d 717, 720, 889 N.Y.S.2d 661).

"Where parents enter into an agreement concerning custody, `it will not be set aside unless there is a sufficient change in circumstances since the time of the stipulation and unless the modification of the custody agreement is in the best interests of the [child].'" McNally v. McNally, 28 AD3d 526, 816 N.Y.S.2d 98 (2nd Dept. 2006), quoting Smoczkiewicz v. Smoczkiewicz, 2 AD3d 705, 706, 770 N.Y.S.2d 101 (2nd Dept. 2003). "Although the totality of the circumstances of the case and the best interests of the child are factors to be considered in all cases where modification of custody is sought where the parties have entered into an agreement, the agreement is entitled to considerable weight and it is incumbent on the party seeking the change to show that in light of changed circumstances continued adherence to the agreement would not be in the children's best interests." Steck v. Steck, 307 AD2d 819, 763 N.Y.S.2d 54 (1st Dept. 2003).

Courts have carved out factors which must be considered in ascertaining whether a change in an existing custodial arrangement is in the best interests of children, including (1) the individual needs and expressed desires of the children; (2) the need of the children to live with siblings; (3) the continuity and stability of the existing custodial arrangement, including the relative fitness of the parents and the length of time the present custodial agreement has continued; (4) the quality of the children's home environment and that of the parent seeking custody; (5) the ability of each parent to provide for the children's emotional and intellectual development; and (6) the financial status and ability of each parent to provide for the children (Fox v Fox, 177 AD2d 209, 210, 582 NYS2d 863 [4th Dept 1992]; see also Eschbach v Eschbach, 56 NY2d 167, 172-173, 436 NE2d 1260, 451 NYS2d 658 [1982]).

The change in circumstances in the case at bar are that the Defendant no longer works very long hours in the Pizzeria business and he has a union job, his work hours have changed and he is able to spend more time in the afternoons and evenings during certain days of the week with the children. He has remarried and his new spouse has developed a close bond with the children while recognizing that she is not their mother but has ample time devote to the children. That the children have adapted to and appreciate the resources their father can provide including a large home, pool, resources for vacations and the clear desires of the children to spend more time with the Defendant than the Plaintiff. The Defendant has been actively involved in the children's daily needs including but not limited to school and medical needs.

It is well established in New York that the Court must consider the desires of the children. They obviously were young when the agreement was signed. Children's preference are one factor to consider in determining where custody should lie and although a child's preference, in itself, is not a material change of circumstance sufficient to justify a change in custody from one parent to another (see Fox v Fox, 177 AD2d 209 [1992],), the older and more mature the child, the greater weight will be accorded to the child's preference (Eschbach v Eschbach, 56 NY2d 167 [1982],). It has been held in this Judicial Department "Substantively, and more importantly, it cannot be denied that a teenage child has a real and substantial interest in the outcome of litigation between the parents as to where the child should live and who should be entrusted to make decisions for the child. It seems self-evident that the child is the person most affected by a judicial determination on the fundamental issues of responsibility for, and the environment of, the child's upbringing." Newton v McFarlane, 174 AD3d 67 (2nd Dept. 2019). The Court in Newton, found that the Family Court erred in "failing to give due consideration to the expressed preferences of the child, who was 14 and 15 years old at the time of the proceedings in the Family Court, and who communicated a clear desire to remain in the father's custody."

Additionally, this Court must also consider the applicable precedent in this State which disfavors separation of siblings. The Court in Eschbach v. Eschbach, 56 NY2d 167, 436 N.E.2d 1260, 451 N.Y.S.2d 658 [1982] stated that:

"this court has long recognized that it is often in the child's best interests to continue to live with his siblings. While this, too, is not an absolute, the stability and companionship to be gained from keeping the children together is an important factor for the court to consider. Close familial relationships are much to be encouraged. (Ebert v. Ebert, 38 NY2d 700, 346 N.E.2d 240, 382 N.Y.S.2d 472 [1976] Young brothers and sisters need each other's strengths and association in their everyday and often common experiences, and to separate them, unnecessarily, is likely to be traumatic and harmful. (Obey v. Degling, 37 NY2d 768, 337 N.E.2d 601, 375 N.Y.S.2d 91 [1975])"

Here the older child is 17 and turns 18 this year. Once she reaches the age of 18 the Court is divested of jurisdiction on the issue of custody and the residence of the child. (see Slater-Mau v Mau, 4 AD3d 658, 772 NYS2d 134 [2004]; Matter of Lazaro v Lazaro, 227 AD2d 402, 642 NYS2d 67 [1996])" See: Gugliara v Veras, 170 AD3d 815, 93 N.Y.S.3d 883 [2nd Dept 2019]

It is clear to this Court that these children should not and must not be separated. With the older child clearly desiring to live with the Defendant two weeks in a row and having the ability to do so absent court order shortly would leave the younger daughter without the benefit of being with her older sibling a substantial amount of time. The younger daughter also desires that residential custody be on a two-week Defendant and one-week Plaintiff parenting time.

There is no doubt that the Defendant loves his children and wants for them the best care and resources possible. He clearly understands them and has a devotion to them. It is also admirable of the amount of support and assistance his present wife provides to the children. Similarly, there is absolutely no doubt that the Plaintiff loves and cares for these children and the children love her. In fact, she has been more willing to sacrifice her standing as a joint residential parent to meet their needs.

Under existing case law and especially in light of Newton (Supra) the desires of the children together with the clear increase in the Defendant's parenting role and the time the children spend with him the change is warranted. Thus, the court grants the Defendant's application for residential custody and the schedule for the children to be with him is modified to two weeks from Monday through Friday with Defendant; One week from Monday through Friday with Plaintiff; and Alternating weekends.

The Court believes that there is no basis to modify the party's agreement of joint legal custody. For the most part they both have taken active rolls in the children's lives and are able to communicate with each other. Although the relationship between the both parents in this case is not perfect, the relationship does not rise to the level that it is so acrimonious that joint decision-making is not possible. The parties agreed to joint legal custody and there is no basis to change that at this time.

There is a basis though to change residential custody from the Plaintiff to the Defendant, based upon the clear and unequivocal request from the children.

What is of concern to the Court is what appears to be an economic disparity between parties influencing the ability of one parent to provide far more resources to meet the needs and desires of teenage children while the other party has had to seek enforcement of child support obligations while working full time.

All parties and the Attorney for the Children appear desirous of the court scheduling a firm parenting holiday schedule. The Court orders:

(a) Alternate New Year's Eve until New Year's Day morning 10 A.M. between the parties every year with odd years to the Plaintiff and even years to the Defendant.

(b) Alternate New Year's Day between the parties every year with odd years to the Defendant and even years to the Plaintiff.

(c) Alternate the winter and spring break between the parties every year with odd years to the Plaintiff and even years to the Defendant.

(d) Alternate the Palm Sunday and Easter Sunday between the parties every year with odd years to the Defendant and even years to the Plaintiff.

(e) Alternate July 4th between the parties every year with odd years to the Plaintiff and even years to the Defendant including the entire weekend if legal holiday falls on a weekend or a Friday or Monday.

(f) Alternate Christmas Eve until Christmas morning 10 A.M. between the parties with odd years to the Defendant and even years to the Plaintiff until Christmas morning 10 A.M.; and

(g) Alternate Christmas Day between the parties with odd years to the Plaintiff and even years to the Defendant.

The Court must note that it has struggled with the concept and concern that the financial resources available to the Defendant while at the same time the Plaintiff earns less, works more daylight hours, and was owed child support had some impact on the children's choices. Notwithstanding, this the Appellate case law regarding wishes of the children, their age, their closeness as siblings and the Defendant's efforts regarding the children warrant the change in residential parenting time.^[1]

This shall constitute the decision and order of this Court.

[1] Given the fact that New York does not recognize a right for child support for a nonresidential custodial parent. See: Rubin v. Della Salla, 107 AD3d 60, 964 N.Y.S.2d 41 (Appellate Division First Dept. 2013) this decision may very well have a further consequence to the Plaintiff which can only be remedied by legislative action."