CHILD CUSTODY - TEENAGER PREFERENCES

ZA v. AA, 2022 NY Slip Op 50817 - NY: Supreme Court, Richmond 2022:

"The Plaintiff alleges a long history of domestic violence in their relationship, including physical and mental assault. (NY St Cts Filing [NYSCEF] Doc Nos. 3). Defendant responds to these allegations of violence in his Opposition, "Plaintiff makes numerous allegations of domestic violence between us [Plaintiff and Defendant] (which I do admit)[.]" (NY St Cts Filing [NYSCEF] Doc Nos. 19).

On or about March 26, 2021, the Plaintiff filed a Family Offense petition in Richmond County Family Court. (NY St Cts Filing [NYSCEF] Doc Nos. 3). The Defendant was excluded from the marital residence by Temporary Orders of Protection and remained excluded in accord with the terms and conditions of a Final Order of Protection issued by the Richmond County Family Court, Order No. 2022-000846, expiration date 7/2/2022. (NY St Cts Filing [NYSCEF] Doc Nos. 6).

Plaintiff states in her Affidavit that all three children reside with her in the marital home. She has been a stay-at-home mother to all three children since they were born and was responsible for taking care of their everyday needs. Plaintiff further asserts that she is the de facto legal and residential parent of the child, Ar.A. (NY St Cts Filing [NYSCEF] Doc Nos. 3).

Defendant alleges that the children, Ay.A., born XXXX, 2003, and Ar.A., born on XXXX, 2005, have freely chosen to reside with him.

Defendant further purports an allegation that the Plaintiff is engaged in an intimate romantic relationship with their oldest son, Al.A. (NY St Cts Filing [NYSCEF] Doc Nos. 19).

On August 5, 2022, a Court Ordered Investigation was issued. The Administration for Children's Services (ACS) provided their report on August 16, 2022. On August 16, 2022, the Court requested further investigation and a follow-up report was provided on August 18, 2022.

ACS reports Plaintiff-Mother's home provides a bedroom for her eldest son, Al.A., that adjoins her own on the main level of the marital home. There is an attic room shared by her daughter, Ay.A., and youngest son, Ar.A. The attic room contains sleeping accommodations in the form of one mattress for Ay.A. and comforters on the floor for Ar.A.

During the follow-up interview with Plaintiff on August 16, 2022, Plaintiff denied any intimate relationship with her son, Al.A., but refused to allow ACS to interview him alone and denied that he was available for interview.

The interview with the child, Ar.A., indicates that he sleeps at Defendant-Father's home and prefers to live with the Defendant-Father due to alleged conflict with his older brother, Al.A., who lives with Plaintiff-Mother. The child, Ar.A., also reported to ACS that he is aware of the alleged intimate relationship between the Plaintiff-Mother and his eldest brother, Al.A., but has no firsthand knowledge of it. The child, Ar.A., reports he was made aware of this relationship by the Defendant-Father and his older sister, Ay.A.

The child, Ay.A., expressed concerns for her mother's mental health and had issues regarding missing items while living with Plaintiff-Mother. The child, Ay.A., stated that while the Plaintiff-Mother and the eldest son were very close, she did not observe any behavior that would indicate an inappropriate relationship. The child, Ay.A., was made aware of the allegations of an inappropriate relationship by the Defendant-Father.

Defendant reiterated his allegations of a relationship between the Plaintiff and the eldest son to ACS. Defendant's apartment contains one bedroom with one bed that the child, Ay.A., sleeps in and comforters on the floor that the child, Ar.A., sleeps on. Plaintiff indicated that he slept in the living room.

ACS offered to provide both the Plaintiff and Defendant an additional bed for the child, Ar.A., and both parties declined.

"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]).

In determining custody, 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).

Both parties provide almost identical living arrangements for the children, Ay.A. and Ar.A. The children are ages 19 years-old and 17 years-old respectively. They have no impairments that would require assistance in taking care of or feeding themselves. These children appear to be living with the Defendant of their own free will and have expressed concerns in living with the Plaintiff. The child, Ar.A., has indicated that while he sleeps at the Defendant-Father's home, he does visit with Plaintiff-Mother at the marital residence.

There have been incidents of domestic violence between the Plaintiff and the Defendant in the past, which the Defendant does not deny, but there have been no allegations of domestic violence between the Defendant and the children.

Accordingly, Plaintiff's request for interim legal and physical custody of the unemancipated child, Ar.A., born on XXXX, 2005, is DENIED, pendente lite, and interim legal and physical custody of the unemancipated child, Ar.A., born on XXXX, 2005, is GRANTED, pendente lite, to the Defendant.

Plaintiff's request for a determination that the Plaintiff is the residential custodial parent for the child, Ay.A., born XXXX, 2003, is DENIED, pendente lite, and a determination of residential custodial parent for the child, Ay.A., born XXXX, 2003, is GRANTED, pendente lite, to the Defendant."