PROSPECTIVE CHILD CUSTODY DETERMINATION

David v. Stephanie, Date filed: 2021-07-17, Court: Supreme Court, New York, Judge: Justice Douglas Hoffman:

"DECISION + ORDER 

This matrimonial action comes before the court primarily upon [motions by both parents for custody and exclusive possession of the marital residence, at a time when both parents are living in the same residence and Defendant Wife seeks an order permitting her to relocate with the parties two minor children to the west coast; Plaintiff Father opposes, and seeks an equal parenting-time schedule with the children in New York and joint legal custody]. [redacted] Prior to analyzing the trial testimony, the court sets forth below the relevant standards concerning this custody determination. “Any court in considering questions of child custody must make every effort to determine what is in the best interest of the child, and what will best promote its welfare and happiness.” Eschbach v. Eschbach, 56 NY2d 167 [1982]. There “are no absolutes in making these determinations; rather, there are policies designed not to bind the courts, but to guide them in determining what is in the best interests of the child.” Id. In reaching its determination as to what is in [the children's] best interest, the court is not limited by a finite set of determinative factors. Id. Rather, the “court is guided by principles which reflect a ‘considered social judgment in this society respecting the family and parenthood.’” Matter of Bennett v. Jeffreys, 40 NY2d 543 [1976], citing Matter of Spence Chapin Adoption Serv. v. Polk, 29 NY2d 196 [1971]. Looking at the totality of circumstances, Eschbach, supra; Bartholomew v. Marano, 174 AD3d 893 [2d Dept 2019]; In Re Xiomara M., 102 AD3d 581 [1st Dept 2013], the court may consider each parent’s ability to provide stability in the children’s lives, and his or her ability to provide for the children’s physical, emotional and educational needs. Evelyn B. v. Vishnu P.A., 170 AD3d 625 [1st Dept 2019]; Melissa C.D. v. Rene I.D., 117 AD3d 407 [1st Dept 2012]; St. Clement v. Cascale, 29 AD3d 367 [1st Dept 2006]. The court may also delve into the children’s lives to ascertain their relationships and activities, Eschbach, supra, assess the quality of the children’s home environment with each parent “and the parental guidance the custodial parent provides for the child[ren].” Id. at 172. See also Matter of Louise E.W. v. W. Stephen S., 64 NY2d 946 [1985]; Dariel M. v. Aurelyn Z.G., 179 AD3d 569 [1st Dept 2020]; Matter of Calvin B. v. Tikema M., 161 AD3d 521 [1st Dept 2018] (citations omitted); Evelyn B. v. Vishnu P.A., supra; Matter of Ramsezs L., 157 AD3d 410 [1st Dept 2018]. This court must also consider which parent, if either, will ensure that [the children] maintain a meaningful relationship with the other parent. Matter of Bliss v. Ach, 56 NY2d 995 [1982]; Dave D. v. Cara C., 179 AD3d 560 [1st Dept 2020]; Valentin v. Valentin, 176 AD3d 1083 [2d Dept 2019]; Melissa C.D. v. Rene I.D., supra. [redacted]. With respect to the possibility of joint legal custody, such an arrangement is appropriate between “relatively stable, amicable parents behaving in mature civilized fashion.” Braiman v. Braiman, 44 NY2d 584, 589-90 [1978], with “trust” as a suggested pre-condition for joint custody. Id. at 584. Usually, a joint custody arrangement can only work “where there is harmony and cooperation between the parents; it should not be continued where the parties are unable to cooperate with each other with respect to their parental obligations such that joint custody is more harmful than beneficial to the child.” Hudson v. Hudson, 163 AD3d 537 [2d Dept 2018] (citation omitted). See also Deanna V. v. Michael C., 179 AD3d 445 [1st Dept 2020] (citation omitted). Although the focus of the trial was relocation, this is an initial child custody determination. In a “pure” relocation case, the parent seeking relocation of the children bears the burden of proving that the relocation is in the children’s best interests. Wells v. Dellago, 144 NYS3d 640, 2021 NY Slip Op. 03459 [2d Dept Jun. 2, 2021] (citations omitted). The established factors relevant to a relocation determination would include the reasons each parent favors or opposes the relocation, the quality of the relationships between the subject children and the custodial and non-custodial parent, the degree to which the children and the custodial parent’s lives would be enhanced economically, emotionally and educationally by the move, and the feasibility of preserving or further developing the relationship between the noncustodial parent and the children through suitable parenting time arrangements. Tropea v. Tropea, 87 NY2d 727, 740-41 [1996]. The impact of the potential relocation upon the noncustodial parent and the subject children remains a central concern when analyzing relocation. Gomez v. Martinez, 188 AD3d 682, 685 [2d Dept 2020], citing Tropea, supra at 739. As this custody trial requires an initial custody determination, where the custodial responsibilities of each parent have not yet been defined by the court or by written agreement of the parties, or by de facto actions, the Tropea relocation factors need not strictly be applied, Mathiew v. Michels, 180 AD3d 403 [1st Dept 2020], and the effect of one parent’s relocation is only one factor that the court may consider in its custody determination. Lawrence v. Mattry, 179 AD3d 687, 688-89 [2d Dept 2020] (citations omitted). Indeed, the Tropea factors could not be strictly applied here, given the disputes between the parties as to who was, is and should be the primary custodial parent. The paramount concern remains what is in the overall best interests of the children based upon the totality of circumstances, including the proposed relocation.

[redacted]

PROSPECTIVE CUSTODY DETERMINATION

Although no party or attorney raised this issue, the court is constrained to address what may appear to be a “Catch-22″ with respect to the procedural and substantive posture of this case. As noted above, as the primary and very urgent issue in this custody trial is relocation of the children to San Francisco [redacted] and, as an initial child custody determination, the court must consider [redacted] totality of circumstances defining the best interest of each subject child. The conundrum here is that the parties are living together and were doing so at the time of the commencement of the custody-related motions and [some intermediate appellate and trial level courts have interpreted a Court of Appeals decision, People ex rel. Sisson v. Sisson, 271 NY 285, 286-88 [1936], to mean that a court may not make a custody determination when the parties are living together, unless the children’s needs are not being met. [id.].

The Sisson court held that courts cannot “regulate by its processes the internal affairs of the home. Dispute between parents when it does not involve anything immoral or harmful to the welfare of the child is beyond the reach of the law. The vast majority of matters concerning the upbringing of children must be left to the conscience, patience and self-restraint of father and mother. No end of difficulties would arise should judges try to tell parents how to bring up their children. Only when moral, mental and physical conditions are so bad as seriously to affect the health or morals of children should the courts be called upon to act.” Id. at 287-88. All agree in the instant case that the children’s needs are being met. Many courts have interpreted Sisson in such a manner that some courts have almost considered it axiomatic that when parents are living together and the children’s needs are being met, the court may not issue a child custody determination. See, e.g., Ijeoma F.A. v. Okechukwu D., 58 Misc. 3d 605, 607-08 [Fam Ct Q Cnty 2011].

It is important to recognize the realities of modern day family life, as well as fundamental changes in matrimonial and family law and litigation in New York, and to hold that under circumstances such as those in the instant case, it is entirely appropriate to consider issuing necessary prospective custody determinations in a variety of circumstances, including where, as in the instant case, parents live essentially separately under the same roof and both parents consent to a custody determination, indeed, ask for one, and need that determination so that they may formally move to separate dwellings without great risk to their litigation position, no less their well-being, and in a manner consistent with the best interests of the children.

Sisson did not even involve a case in which the parents were divorcing or separating. For the past generation or two, certainly in this most recent generation, many parents, regardless of gender, actively and credibly seek primary or joint custody, and neither parent is seemingly willing, or advised, to move out lest they “cede” custody, no less the marital residence, to the other parent, until such time as there is an acceptable custody and parenting schedule.

Moreover, in 2010 the Legislature amended the Domestic Relations Law to permit no fault divorces based upon an irretrievable breakdown of the marital relationship, DRL §170(7). This statute means that even if only one spouse seeks a divorce and states that there was an irretrievable breakdown of the marital relationship for at least six months prior to the commencement of the matrimonial action, the court may not refuse to grant them a divorce if other prerequisites are satisfied. Very importantly, DRL §170(7) also mandates that all ancillary issues, including custody, be resolved before the court may grant a divorce. If a court refuses to adjudicate custody after one spouse has filed for divorce pursuant to DRL §170(7) (by far the vast majority of divorce complaints rely upon this provision) and a spouse does not move out (often for the reasons discussed above, including not wanting to cede parenting without a schedule), the court would deny a plaintiff that ability to have a timely divorce that the Legislature has said they are allowed to have, regardless of grounds, and instead, effectively would require parents to remain together until another ground for divorce, such as domestic violence-related conduct, is established, which other ground does not require resolution of custody and certain other ancillary issues, see DRL §170(1) (“The cruel and inhuman treatment of the plaintiff by the defendant such that the conduct of the defendant so endangers the physical or mental well-being of the plaintiff as renders it unsafe or improper for the plaintiff to cohabit with the defendant”) or until such time as one parent feels compelled to vacate the marital residence without a parenting schedule, possibly risking an inappropriate parenting schedule going forward.

Some courts appear to have permitted custody determinations when parents are living together, sometimes without directly addressing the issues raised above. In a pre-DRL §170(7) case, the Appellate Division, Second Department, affirmed a lower court order that in relevant part established a visitation schedule for a father with the child, although the parents resided together. Faber v. Faber, 159 AD2d 676 [2d Dept 1990]. The court stated, “…in light of the situation in wherein both feuding parents reside together in the marital residence, we conclude that the visitation schedule which accommodated the plaintiff’s desire to breast feed the child and the defendant’s need to spend time alone with the infant without the stress which appears to be rampant when the parties are together, was proper.” Id. at 676-77.

Very recently, the Appellate Division, Third Department, in Vickie F. v. Joseph G., 2021 NY Slip Op. 03488, 2021 WL 2230002 [3d Dept Jun. 3, 2021], upheld an award of primary physical custody to Wife where joint custody was not feasible: “Following commencement of the action, the parties continued to reside together in the marital residence, but their relationship deteriorated to the point where they were unable to effectively communicate with one another for the sake of the children, rendering a joint custodial arrangement unfeasible.” Id. at 3.

Although Vickie F. differs from the instant case in that the [parties here] are able to communicate effectively in the best interests of the children, and it could be said that the children’s needs were not being met in Vickie F., it is clear that some appellate courts may uphold prospective custody determinations under appropriate circumstances. There is no question but that courts are permitted to award exclusive possession of the marital residence under specified circumstances to one spouse while the divorce action is pending. Goldman v. Goldman, 185 AD3d 1012 [2d Dept 2020]. This may be done for a variety of reasons, including the prevention of domestic violence. Frequently, such applications are made when minor children live with the parents in the marital residence. When the court excludes one party from the marital residence, it may and often does establish a temporary parenting schedule. To require a parent to move out or, instead remain but wait until a dangerous event, such as domestic violence, occurs, possibly triggering an exclusion hearing and order, to issue a custody order, may run contrary to and at times be even dangerous to the best interests and well-being of the subject children.

In the instant case, the court must decide today those branches of motions and cross motions in which each spouse seeks an order awarding that spouse exclusive possession of the marital residence. The court must formally consider each such motion and, if such a motion is to be granted without formalizing a parenting schedule for each parent, that action would be deeply harmful to the best interests and perhaps even the emotional well-being of the children.

One potential objection to prospective custody determinations is that the court cannot predict what will be in the best interests of the subject children months from now. Every custody determination, however, is a prediction, based upon information the court has at the time of the decision, as to the probable best interests of the children, not only at the moment of decision, but in the future until there is a material change of circumstances. The court need not reach today the issue of the full scope of its authority to issue prospective custody determinations, as here both parents have every intention of separating at the first possible time, very likely almost immediately following this custody determination; both parties have not only consented to but demanded a prospective custody determination for a host of reasons [redacted], and both parties have sought a court order seeking exclusive possession of the marital residence, the granting of which would require a prospective child custody determination in the best interests of the children. Under these circumstances, the court holds that it has both the authority and duty to issue the prospective custody determination below.

[redacted; custody determination entered after full hearing]."