CHILD CUSTODY AND THE PROBLEM CHILD

The problem child, the stubborn child - in NY, a parent may seek a PINS. A child under the age of 18 who does not attend school, or behaves in a way that is dangerous or out of control, or often disobeys his or her parents, guardians or other authorities, may be found to be a Person In Need of Supervision or "PINS". All PINS proceedings are heard in Family Court (in Massachusetts, where I also do this work, the proceeding is called a CRA, Child Requiring Assistance).

In this case, the problem child was handled in a post-divorce proceeding between the parents. IG v. v. IZ. V., 2022 NY Slip Op 50816 - NY: Supreme Court, Richmond 2022:

"Memorandum Decision

Statement of Facts

Plaintiff Ig.V. and Defendant Iz.V were married on July 31, 1992. There are two children of the marriage, to wit: M.V., born XXXX, 1996, and D.V., born XXXX, 2007. M.V. has been emancipated by reason of age. The Plaintiff commenced this action for divorce on or about September 30, 2011 and both parties asserted custody claims for their children.

Following trial of the issue of custody for the child, D.V., the Trial Court, Hon. Barbara I. Panepinto, Justice presiding, issued her decision after trial on November 25, 2019, which was incorporated into the Judgment of Divorce. Pursuant to the Trial Court's Decision and Judgment of Divorce issued on December 15, 2020, the Defendant was granted sole legal and residential custody of the child, D.V. Plaintiff was awarded parental access to the child, which he exercised.

In or about May, 2020, the child, D.V., began to reside with the Plaintiff and continues to reside with the Plaintiff. On September 18, 2022, Defendant filed Motion Sequence #023 (NY St Cts Filing [NYSCEF] Doc Nos. 222-226) seeking enforcement of the Judgment of Divorce in terms of custody and child support. On September 24, 2020, Hon. Barbara I. Panepinto appointed Harry Chiu, Esq. attorney for the child. (NY St Cts Filing [NYSCEF] Doc No. 227) On September 29, 2020, Plaintiff filed Cross Motion Sequence #024 (NY St Cts Filing [NYSCEF] Doc Nos. 228-231) seeking to modify the Judgment of Divorce in terms of custody. On September 25, 2020, Justice Panepinto issued an Order granting the Defendant parenting time with the child, D.V., on weekends pending the resolution of the motions. (NY St Cts Filing [NYSCEF] Doc No. 242).

Motion Sequence #023 was orally withdrawn on April 8, 2021 before Justice Panepinto. (see WebCivil Supreme — Motion Detail). Cross Motion #024 was dismissed in an oral decision by Justice Panepinto on April 8, 2021. (see id).

On April 9, 2021, Plaintiff brought Motion Sequence #025 by Order to Show Cause seeking to modify the Judgment of Divorce. (NY St Cts Filing [NYSCEF] Doc Nos. 243-251). Motion Squence #025 was dismissed in an oral decision by Justice Panepinto on June 11, 2021. (see WebCivil Supreme — Motion Detail).

On June 11, 2021, the Plaintiff filed Motion Sequence #026 by Order to Show Cause. The Plaintiff seeks a modification of the Judgment of Divorce, dated December 15, 2020, granting the Plaintiff physical and legal custody of the parties' child, to wit: D.V., born XXXX, 2007; and any further relief as this Court may deem just, proper, and equitable under the circumstances.

Defendant filed opposition to Motion Sequence #026, dated September 3, 2021, and filed via NYSCEF on February 25, 2022. On October 20, 2021, Plaintiff filed reply to Motion Sequence #026. Response from the Attorney for the Child (AFC) was filed to Motion Sequence #026 on October 30, 2021. Defendant filed opposition to Response from the AFC to Motion Sequence #026 on February 23, 2022.

On September 7, 2021, the Plaintiff filed Motion Sequence #027 by Order to Show Cause. The Plaintiff seeks a downward modification in the Plaintiff's child support obligation considering a substantial and unanticipated change in circumstances, to wit, the change in residence of the Child, D.V.

Defendant filed opposition to Motion Sequence #027, dated October 25, 2021, and filed via NYSCEF on February 25, 2022. Response from the AFC to Motion Sequence #027 was filed on February 25, 2022. Plaintiff filed reply to Motion Sequence #027 on March 9, 2022.

Generally, custody determinations should be made only after a full and plenary hearing and inquiry. "This general rule furthers the substantial interest, shared by the State, the children, and the parents, in ensuring that custody proceedings generate a just and enduring result that, above all else, serves the best interest of a child." (see S.L. v J.R., 27 NY3d 558 [2016]).

A full and plenary hearing was held to determine custody of the Child, D.V., on Motion Sequence #026 and Motion Sequence #027 on May 19, 2022 and June 22, 2022. Plaintiff testified on his own behalf. Plaintiff did not introduce any documents into evidence. Defendant testified on her own behalf. Defendant introduced one document into evidence (Defendant's Exhibit A) and three documents for identification purposes only (Defendant's Exhibit B, Defendant's Exhibit C, and Defendant's Exhibit D).

On July 1, 2022, summations were filed via NYSCEF by Plaintiff, Defendant, and AFC.

This is a Decision and Order on Motion Sequence #026 and Motion Sequence #027.

Discussion

I. Determination of Physical and Legal Custody of the Child, to wit: D.V.

In Motion Sequence #026, the Plaintiff seeks (1.) a modification of the Judgment of Divorce, dated December 15, 2020, granting the Plaintiff physical and legal custody of the parties' child, to wit: D.V., born XXXX, 2007; and (2.) any other and further relief as this Court may deem just, proper, and equitable under the circumstances.

Custody orders are required to be entered "as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties and to the best interests of the child." (Domestic Relations Law § 240 [1] [a]). In order "to modify an existing custody and parental access order, there must be a showing of a change in circumstances such that modification is necessary to ensure the continued best interests of the child." (see Matter of Cook v Sierra, 190 AD3d 732 [2d Dept 2021], citing Matter of Dokmeci v Herbert, 167 AD3d 877 [2d Dept 2018]).

There has been a clear and incontrovertible change in circumstances. The living arrangements of the Child, D.V., were already in flux during the period between the Court's November 25, 2019 decision after trial and the issuance of the Judgment of Divorce by Hon. Justice Barbara I. Panepinto on December 15, 2020. The Judgment of Divorce states, "pursuant to this Court's Decision dated November 25, 2019 the defendant shall have sole legal and residential custody of the child of the marriage: D.V., born XXXX, 2007[.]" The Judgment further states, "that the plaintiff is granted access time with the parties' child, D.V., as set forth in this Court's November 25, 2019 Decision After Trial[.]" (NY St Cts Filing [NYSCEF] Doc No. 255).

Both the Plaintiff and Defendant agree that at some point between the end of April 2020 and the beginning of May, the 15-year-old Child, D.V., had a disagreement with Defendant-Mother, called his Plaintiff-Father to come get him. Since that point, the Child has been living with the Plaintiff.

On May 19, 2022, Plaintiff testified that in April of 2020, there was a dispute between the Defendant and the Child and the Child began residing with the Defendant. (tr 8, lines 10-12 [May 19, 2022]).

On June 22, 2022, Defendant testified that the child, D.V., lived with her in New Jersey from 2014 until approximately May of 2020. (tr at 45, lines 19-23 [June 22, 2022]). Defendant continued to testify that she and the Child had an argument regarding a school issue. The child, D.V., called his father, apparently asked him to come pick him up, and D.V. never returned to live at the Defendant's residence. (tr at 46, lines 13-18 [June 22, 2022]).

Defendant also testified that for a period of time D.V. did not visit Defendant until 2021 Justice Panepinto ordered the Child to visit the Defendant every weekend. (tr 55, lines 10-14 [June 22, 2022]). Defendant further testified that D.V. visits more frequently now, and stays from Friday after school until Sunday night or Monday mornings. (tr 55, lines 1-5 [June 22, 2022]).

"In determining whether such a change exists, the court must determine whether the totality of the circumstances justifies modification[.]" (see Matter of Connolly v Walsh, 126 AD3d 691 [2d Dept 2015], citing Friederwitzer v Friederwitzer, 55 NY2d 89 [1982]).

"There is `no prima facie right to the custody of the child in either parent[.]'" (see Matter of Schultheis v Schultheis, 141 AD3d 721 [2d Dept 2016], quoting Domestic Relations Law § 70 [a]). "In adjudicating custody and visitation rights, the best interests of the child is the paramount factor to be considered[.]" (see Matter of Connolly v Walsh, 126 AD3d 691 [2d Dept 2015], citing Eschbach v Eschbach, 56 NY2d 167 [1982]).

While the Child does have parenting time with the Defendant-Mother spending weekends with her, the Child has been residing with the Plaintiff-Father full-time for more than two years. The circumstances of the Child's educational experience have changed as well. At the time of the Child's relocation to Staten Island, he was enrolled in school in New Jersey. He completed the 2019-2020 school year remotely due to the COVID-19 pandemic. In the two years since he has been attending school in Staten Island. (tr 9, lines 1-6 [May 19, 2022]).

High school age children typically struggle in adjusting. It is a time in which they experience physiological, mental, and social changes. It is a time for personal growth and unfortunately a time for experimentation and testing boundaries. To add to an already difficult time, the isolation, depression, and stresses caused by the COVID-19 pandemic have also greatly impacted this generation. The uprooting of a second-year high school student and requiring him to attend a new school, in another state that removes him from his social circle would create additional stress on a student that already has some difficulties.

The AFC states in his response to Motion Sequence #026, "The child himself has reported to both ACS [Administration for Child Services] and his own attorney that he prefers to reside with his father in Staten Island, NY." (NY St Cts Filing [NYSCEF] Doc No. 275).

The Court must consider these factors as part of its determination as to whether changing custody is in the best interests of the Child.

"In making a determination as to what custody arrangement is in the children's best interests, the court should consider the quality of the home environment and the parental guidance the custodial parent provides for the children, the ability of each parent to provide for the children's emotional and intellectual development, the financial status and ability of each parent to provide for the children, the relative fitness of the respective parents, and the effect an award of custody to one parent might have on the children's relationship with the other parent[.]" (see Matter of Schultheis v Schultheis, 141 AD3d 721 [2d Dept 2016], citing Matter of Hutchinson v Johnson, 134 AD3d 1115 [2d Dept 2015]).

The Child, D.V., is a child that has some difficulties. Plaintiff and Defendant have testified that the Child has issues smoking, alcohol consumption, and marijuana use.

Plaintiff testified that in his search for a therapist to assist the Child in addressing some of his issues he stated, "I was looking especially for a person who specializes in substance abuse because D.V. smokes and, you know, he was intoxicated and positive for weed so I was kind of looking for specialist who can address those issues." (tr 21, lines 14-17 [May 19, 2022]). The Plaintiff understands that there is an issue with these areas of D.V.'s conduct and has been proactive in seeking assistance in remediating them.

Defendant testified on this issue, "I think that he [D.V.] has issue with smoking recreational marijuana when he's on Staten Island with his father and smoking vapes[.]" (tr 51, lines 12-14 [June 22, 2022]). Defendant further testified regarding an incident that occurred on June 9, 2021, "D.V. asked me to drop him off to the mall. On the way to the mall, which is about 15 minutes from my house, he asked me if he can pick up his friends on the way there. We came to pick [up] his friends and he asked me is he could stay with his friends and go to the mall from there, which I did not feel comfortable, but he begged me to." (tr 67, lines 11-16 [June 22, 2022]). Defendant's previous testimony regarding this incident from the June 22, 2022 transcript (tr 65, lines 14-23) is as follows:

Q. [W]hen was the next time you heard from D.V.?

A. Half hour later when I called and security picked up at the mall.

Q. Security picked up at the mall?

A. Yes.

Q. Why didn't D.V. pick up?

A. Because he was there intoxicated.

Q. With what, ma'am?

A. With Alcohol poison.

Plaintiff and Defendant recognize the smoking, alcohol, and marijuana use as an issue that their child has. While Plaintiff testified that he sought a therapist to assist his Child with these specific issues, Defendant's response, even after the Child's alcohol poisoning incident that required hospitalization, while the child was visiting the Defendant in New Jersey, was that these issues were a problem for the Child only when he was on Staten Island with Plaintiff-Father. This Court does not find that testimony to be credible.

Plaintiff and Defendant both recognized that the Child needed some assistance in the form of therapy. Plaintiff testified that the Child "was seeing a therapist during the time he was residing with his mom [Defendant]." (tr 10, lines 18-19 [May 19, 2022]). Plaintiff further testified, that the Child's diagnosis requires that "He's continuously receiving therapy. The specialist psychologist — psychiatrist prescribe him [sic] medication[.]" (tr 11, lines 13-16 [May 19, 2022]).

Plaintiff has proactively sought and engaged with various providers for D.V. Plaintiff has also participated in D.V.'s counseling sessions. (tr 40-41 [May 19, 2022]).

Defendant has also consulted with D.V.'s therapists and participated in at least one counseling session. (tr 50-51 [June 22, 2022]).

Plaintiff has testified to the difficulties the Child is having in school. He acknowledges that D.V., "has problems in school" and "[h]e's failing a few classes." (tr 53, lines 9-11 [May 19, 2022]). Plaintiff further testified that he has discussed D.V.'s educational issues with his teachers as well as guidance counselors and he is aware of and uses the Department of Education's Pupil Path app to track D.V.'s progress and attendance. (tr 53-54 [May 19, 2022]). Plaintiff also testified that D.V. has difficulty concentrating in school and he is attempting to remediate this issue through therapy. (tr 54-55 [May 19, 2022]).

Plaintiff further testified following discussions with D.V.'s counselor and/or therapist Plaintiff had to help improve D.V.'s mental state. It is "[h]is problems with [sic] psychological prevent him from functioning because he has hyperactivity and anxiety. It causes him to fail his classes and not perform in them well." (tr 58, lines 19-24 [May 19, 2022]). Plaintiff has also engaged the services of a tutor for the last two years to assist D.V. in his studies. Sessions vary from a few times a week to daily. (tr 61-62 [May 19, 2022]).

Plaintiff also acknowledged the Child's absenteeism from school. Plaintiff is attempting to remedy this in-part through a tracking app on the Child's phone.

Defendant testified as to D.V.'s school performance when he was living with her and attending school in New Jersey. "[E]verything pretty much except maybe one or two subjects was above 90. And again, when the Covid hit, he [D.V.] started slacking." (tr 49, lines 14-16 [June 22, 2022]).

Defendant further testified as to D.V.'s attendance record when he was living with her. "I would say 98 percent [attendance], except two percent when he was sick and couldn't go." (tr 49, lines 24-25 [June 22, 2022]).

Defendant testified, "I requested an access to Pupil Path, which I printed records last Friday." (tr 48, lines 12-13 [June 22, 2022]). Through this access Defendant is aware of the Child's performance and attendance issues.

Plaintiff raises questions regarding the Defendant acting in the best interests of the child and has testified that medication was prescribed for D.V. by a psychiatrist, "but his mom [Defendant] persuade [sic] him not to take it." (tr 11, lines 16-17 [May 19, 2022]). Plaintiff further testified that despite his best efforts the Child refused to ever take the prescribed medication that was purportedly used to treat "anxiety and hypertension, hyperactivity." (tr 19 [May 19, 2022]).

Defendant raises questions regarding the Defendant acting in the best interests of the child and testified that in 2020 on "July 23, 4:00 in the morning, D.V. called me in hysterics and told me to come and pick him up because his father left for the airport with his girlfriend to take a vacation and D.V. was left behind because his fever was 100.3 and because it was a Covid period, he wouldn't be able to pass the security." (tr 53, lines 1-5 [June 22, 2022]). The Child stayed with the Defendant for five days until the Plaintiff returned. Further testimony by the Defendant did reveal that D.V.'s 24-year-old brother was residing in the same home and that Michael is a nurse. (tr 66 [June 22, 2022]).

The court should also consider the child's wishes, weighed in light of their ages and maturity. (see id, 141 AD3d 721 [2d Dept 2016], citing Eschbach v Eschbach, 56 NY2d 167 [1982]). "[W]hile 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." (see Matter of Newton v McFarlane, 103 NYS3d 445 [2d Dept 2019], quoting Matter of Nevarez v Pina, 154 AD3d 854 [2d Dept 2017]). "[A] 15-year-old child's expressed preference is a relevant factor in determining the child's best interests in connection with issues of custody and relocation[.]" (see id).

D.V., born January 25, 2007, is more than 15 and a half years old. On October 31, 2021, the Child's attorney responded to Motion Sequence #026 on behalf of the child.

"The child himself has reported to both ACS and his own attorney that he prefers to reside with his father [Plaintiff] in Staten Island, NY. His relationship with his mother [Defendant] at times is strained, and at times very amiable. Sometimes when they argue, the child will not go to his mother's home in New Jersey. However, more often than not, during this litigation, he has had positive and regular visitation with his mother. Currently the child has been visiting with his mother every weekend. He is adjusting well to high school and is in the ROTC program. The child also reports to his attorney that he no longer consumes alcohol or smokes marijuana. He is currently in therapy and is learning more productive ways to occupy his time. D.V. has found his current therapist to be very helpful. He states that he no longer commiserates with those friends that use illicit substances, and he never wants to go through again what he did in June 2021." (NY St Cts Filing [NYSCEF] Doc No. 275).

While reviewing the testimony of both parties, this Court evaluated the above factors to determine the best interest of the child for the purposes of determining legal and residential custody of the Child, D.V.

Plaintiff seeks to modify the prior decision and Judgment of Divorce and requests that this court issue an order of physical and legal custody of the parties' child, D.V., to him, which would reflect the family's current reality. This relief is within the Court's discretion. (Domestic Relations Law § 240[1][a]). The relocation of the Child from the residence of the Defendant in New Jersey to the residence of the Plaintiff in Staten Island for more than two years is a change in circumstances to warrant the modification of the existing custody to ensure the best interests of the child. (see Matter of Cook v Sierra, 190 AD3d 732 [2d Dept 2021], citing Matter of Dokmeci v Herbert, 167 AD3d 877 [2d Dept 2018]).

Plaintiff has demonstrated that he has become the primary actor tending to the Child's medical needs in arranging therapy and counseling. The Child has been attending school in Staten Island since his relocation more than two years ago and, while recognizing educational issues the Plaintiff is informed of those issues and has been working with the child to remediate them. The Child also continues to express his desire to remain living with the Plaintiff on Staten Island. This relocation for more than two years by the Child from the Defendant to the Plaintiff has been a complete (and for the foreseeable future permanent) relocation. The change in the totality of the circumstances justify a modification in custody. (see Matter of Connolly v Walsh, 126 AD3d 691 [2d Dept 2015], citing Eschbach v Eschbach, 56 NY2d 167 [1982]).

High school age children often face challenges. In a post Covid world the difficulties for some children are magnified. Plaintiff is aware of the issues facing his Child, mental health and educational. He is also aware of the behavioral problems D.V. has had regarding absenteeism from school, alcohol, smoking, and marijuana. Plaintiff is not complacent. He is actively engaged in trying to help D.V. correct these issues with a tutor and mental health professionals.

The AFC observes in his response to Motion Sequence #026, "Based on multiple interviews with the child, the child's statements to the Administration of Children's Services (ACS) in the various court ordered investigations (COIs), and information provided by the parties, it appears that there is no imminent or potential risk to the child's and [sic] welfare while residing with his father [Plaintiff]." (NY St Cts Filing [NYSCEF] Doc No. 275).

The AFC further observes, the Child has "graduated from middle school and has moved on to high school. He is in counseling that addresses his mental health, including discussing teenage alcohol and drug use." (see id).

The Child, on his own volition, chose to relocate to the Plaintiff's home in 2020. The Child has continued to choose to remain living with the Plaintiff and maintain the status quo for the last two years. In that time neither parent, nor outside party has been able to change his position. The Child's expressed preference of remaining with the Plaintiff is some indication of what is in his best interests. (see id, 141 AD3d 721 [2d Dept 2016], citing Eschbach v Eschbach, 56 NY2d 167 [1982]). D.V., a 15-and-a-half-year-old, should have his preference considered as a relative factor in determining his best interests. see Matter of Newton v McFarlane, 103 NYS3d 445 [2d Dept 2019], quoting Matter of Nevarez v Pina, 154 AD3d 854 [2d Dept 2017]).

Based on the testimony by the Plaintiff and the Defendant, it appears that the Plaintiff-Father is better able to provide appropriate guidance to the Child. Plaintiff has demonstrated that he has the ability to ensure the child attends therapy and medication management. Plaintiff is aware of and appears to be attempting to remediate educational issues through a tutor. Plaintiff is financially stable and has met all the child's financial needs. Plaintiff as well as Defendant would better serve the bests interests of the Child by improving their communication between each other and sharing all information pertaining to the Child in the most expeditious manner possible. The Plaintiff demonstrates his support and fosters the relationship between the Child and the Defendant in that the Child visits the Defendant almost every weekend from Friday after school to at least Sunday. Accordingly, after consideration of the totality of these factors and the best interests of the child, D.V., legal and residential custody is GRANTED to the Plaintiff with the current parenting time schedule remaining in effect for the Defendant.

II. Downward Modification of Plaintiff's Child Support Obligation

In Motion Sequence #027, the Plaintiff seeks a downward modification of his child support obligation for the Child, D.V.

"A parent has an obligation to provide support for his or her child's basic needs, an obligation which is addressed in Domestic Relations Law §240(1-b)(c)(1), (2)." (see Cimons v Cimons, 53 AD3d 125 [2d Dept 2008].

Where an application is made for a downward modification of child support due to a change in circumstances, the change in circumstances must be substantial. (see Matter of Brunetti v. Brunetti, 22 AD3d 577 [2d Dept 2005]; Praeger v Praeger, 162 AD2d 671 [2d Dept 1990], citing Nordhauser v Nordhauser, 130 AD2d 561 [2d Dept 1987]; Matter of Allen v Bowen, 149 AD2d 828 [3d Dept 1989]).

The parties have created a new reality pertaining to custody of the Child that is no longer reflective of the circumstances anticipated by the Judgment of Divorce. For a period of more than two years the child has been residing with the Plaintiff and not the Defendant as ordered by the Judgment of Divorce. The Plaintiff had become the de facto custodian of the Child. Plaintiff testified on May 19, 2022 to the change in actual residency of the Child from Defendant to Plaintiff (tr 8, lines 10-12 [May 19, 2022]) and on June 22, 2022, the Defendant testified to this change in actual residence of the child (tr at 46, lines 13-18 [June 22, 2022]). As a consequence of this Decision, granting legal and residential custody to Plaintiff, child support must necessarily be addressed.

There is a clear and substantial change in circumstances in this matter and it is in the best interests of the child to downwardly modify the Plaintiff's child support obligation to reduce the child support obligation paid to the non-custodial parent/Defendant to zero dollars. There is no need for child support to be paid to the Defendant at the present time, as the Child no longer resides with the Defendant and the Defendant no longer has legal or residential custody^[1].

Accordingly, after consideration of the totality of these factors and the best interests of the child, D.V., the Plaintiff's request to downwardly modify the Plaintiff's child support obligation to the Defendant to zero dollars is GRANTED.

Decretal Paragraphs

ORDERED, that the relief sought by Ig.V. in Motion Sequence #026 is GRANTED.

ORDERED, that the relief sought by Ig.V. in Motion Sequence #027 is GRANTED.

The remainder of the parties' contentions, if any, are either without merit or need not be addressed given the conclusions reached above.

ORDERED, that the Clerk of the Court shall enter judgment accordingly.

The foregoing shall constitute the Decision and Order of this Court.

[1] There is no motion pending before this court by Plaintiff seeking Child Support from the Defendant-Mother. If and when the court receives such motion, the court will address the issue at that time."