RESOLVING PARENTING TIME DISPUTE BETWEEN TWO PARENTS

SS v. MS, 2022 NY Slip Op 51090 - NY: Family Court 2022:

"In this custody and visitation proceeding brought under Article 6 of the Family Court Act, respondent M.S. ("Respondent") filed this motion pursuant to Domestic Relations Law ("DRL") 245, and articles 765, and 770 of the Judiciary Law seeking (1) a finding of contempt against Petitioner, (2) an Order of Commitment, (3) an award of sole legal and physical custody of the children to Respondent, (4) that Petitioner's parenting time be limited to supervised visitation only, and for such other and further relief as the court deems just and proper. This file was transferred to the undersigned by Referee Gail A. Adams due to the nature of the motion. Following review of the motion papers and exhibits cited above, procedural history, and court-maintained audio recordings of the proceedings, the motion is granted in part.

Background

Petitioner and Respondent are the parents of four children, born XX XX, 2013, XX XX, 2015, XX XX, 2017, and XX XX, 2021 (the "children"). Beginning on December 20, 2021, the parties have engaged in extensive litigation in this court and have filed multiple petitions including family offenses, petitions for enforcement of court orders, and petitions for custody. On December 20, 2021, Respondent filed a family offense petition against Petitioner (Docket no. O-06460-21) and a petition for custody of the children (Docket nos. V-06463-22, V-06464-22, V-06465-22, V-06466-22). On the same date, a full stay away temporary order of protection was issued in favor of Respondent and the children and against Petitioner. After an appearance before the court, the stay away provisions of the temporary order of protection were removed on December 22, 2022 and the court entered a temporary order of visitation that set a schedule for Petitioner to have parenting time with the children. The temporary order of visitation also orders that "[n]either parent is to remove the child[ren] from the New York City area during the pendency of this proceeding without prior approval of the court." Following another appearance before the court on January 13, 2022, the children were removed from the temporary order of protection and the temporary order of visitation was also continued.

On January 19, 2022, Petitioner filed a custody petition to enforce the temporary order of visitation and for sanctions against Respondent (Docket nos. V-06463-21/22A, V-06464-21/22A, V-06465-21/22A, V-06466-21/22A). Petitioner filed an amended petition to enforce the temporary order of visitation on March 21, 2022, in which she alleges that Respondent "has taken the children out of the New York City area to live on Long Island without notifying courts. He has since blocked me and refused to drop off our child [R.]. Our children also aren't in school." On March 22, 2022, Petitioner filed a motion, by order to show cause, to punish Respondent for contempt for allegedly withholding the children in Long Island and refusing to give Petitioner access to them. This matter was then referred to the undersigned. On March 29, 2022, at an appearance before this court, Respondent withdrew his custody petition and the motion for contempt was dismissed as moot.

On March 30, 2022, Petitioner filed the instant a petition seeking custody of the children (Docket nos. V-02267-22, V-02268-22, V-02269-22, V-02270-22) and filed a family offense petition against Respondent (Docket no. O-02261-22). On the same date, a full stay away order of protection was issued in favor of Petitioner and against Respondent. The temporary order of protection was continued on May 3, 2022.

On May 16, 2022, an on-the-record conference was held before Referee Brenes. At the appearance, Petitioner requested that any parenting time with Respondent be supervised. The attorney for the child opposed the request for supervised visits, noting that there were no safety concerns regarding Respondent's care of the children and the children expressed that they love their father and want to spend time with him. Referee Brenes denied the request, stating that there were no grounds for supervised visits, and ordered that beginning May 20, 2022, Respondent would have weekly parenting time with the children every Friday at 5:00 p.m. until Sunday at 6:00 p.m., with pickup to occur curbside at Petitioner's home.^[1] An order memorializing this direction was issued on May 16, 2022 (S.S. affidavit in support, exhibit A), but was not emailed to the parties until May 23, 2022, due to an administrative error. The written order states, in pertinent part, "[c]ommencing Friday, May 20, 2022, and every week thereafter, the father [] may have visits with the children ... commencing at 5pm until Sunday at 6pm."

On May 20, 2022, Respondent arrived at Petitioner's residence to pick up the children, but Petitioner refused to produce the children (id. ¶ 4). The police arrived and Respondent was arrested for violating the outstanding temporary order of protection (id.). On May 21, 2022, a criminal court temporary order of protection was issued in favor of Petitioner and against Respondent (S.S. affidavit in opp ¶ 6). The criminal court order contains orders that Respondent stay away from and refrain from all communication with Petitioner, except for communications or access permitted by a subsequent order issued by a family or supreme court in a custody, visitation or child abuse or neglect proceeding (Hazelwood affirmation in opp, exhibit A).

Petitioner also did not produce the children for the weekends of May 27, 2022, June 3, 2022, or June 9, 2022. She attests that she did not produce the children for parenting time on May 20, 2022 because she did not feel comfortable sending the children for parenting time without a copy of the court's order, and did not produce the children on the subsequent dates because of the criminal court order of protection (S.S. affidavit in support at 13).

Another conference was held with Referee Brenes on June 13, 2022. At the conference, Referee Brenes reiterated that Respondent was to have parenting time with the children and issued a second visitation order reflecting the same parenting time schedule set forth in the prior order. On June 14, 2022, there was another appearance before Referee Brenes for the purpose of assigning counsel to Petitioner. On June 17, 2022, Respondent picked up the children and exercised parenting time as directed in the order (S.S. affidavit in support ¶ 7). That weekend, Respondent took the children shopping and took the three older children to a salon, where they had their hair washed and cut (id.).

On June 24, 2022, June 25, 2022, and the weekends July 1, 2022 and July 8, 2022, Petitioner again refused to produce the children for parenting time with Respondent (S.S. affidavit in support ¶ 9).^[2] Petitioner argues that she did not send the children for parenting time on these dates for a variety of reasons. First, she attests that the children were very upset when they returned home from the June 17, 2022 visit with Respondent, and in particular M was upset that her hair was cut during the visit with Respondent (S.S. affidavit in support at 13). She offers no explanation regarding the June 24, 2022 visit. She attests that when she began preparing the children for the July 1, 2022 visit, the children reported that they did not want to visit with Respondent and Ivan had an anxiety attack when informed of the visit (S.S. affidavit in opposition ¶ 5). She then called ACS who purportedly stated she did not have to send the children to the visit if they did not want to go (id.). Petitioner further states that she did not send the children for parenting time with Respondent because she was waiting for the children to be interviewed by their attorney and, for the weekend of July 8, 2022, because the children wanted to attend their cousin's birthday party (id. ¶¶ 6-9).

The instant motion was filed, by order to show cause, on July 14, 2022 and the motion was assigned to the undersigned. Petitioner reports that she has consistently sent the children for parenting time with the Respondent since July 15, 2022, and Respondent does not contradict this representation (S.S. affidavit in opposition ¶ 11).

Discussion

Respondent's moves for an order of contempt for Petitioner's failure to produce the children for court-ordered parenting time for eight weekends between May 20, 2022 and July 10, 2022. He seeks relief pursuant to Domestic Relations Law ("DRL") 245, and articles 765, and 770 of the Judiciary Law for (1) a finding of contempt against Petitioner, (2) an Order of Commitment, (3) an award of sole legal and physical custody of the children to Respondent, (4) that Petitioner's parenting time be limited to supervised visitation only, and (5) for such other and further relief as the court deems just and proper.

Civil contempt is defined as "disobedience to a lawful mandate of the court" which prejudices the rights or remedies of another party to the litigation (see Judiciary Law § 753[A][3]). Civil contempt must be proven by clear and convincing evidence (El-Dehdan v El-Dehdan, 26 NY3d 19, 29 [2015]). The Court of Appeals has described the elements necessary to support a finding of civil contempt as follows:

First, it must be determined that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect. Second, it must appear, with reasonable certainty, that the order has been disobeyed. Third, the party to be held in contempt must have had knowledge of the court's order, although it is not necessary that the order actually have been served upon the party. Fourth, prejudice to the right of a party to the litigation must be demonstrated.

(id. [internal quotes and citations omitted]). "A motion to punish a party for civil contempt is addressed to the sound discretion of the court" (Bauman v Bauman, 208 AD3d 624, 626 [2d Dept 2022]). "A hearing is not mandated in every instance where contempt is sought; it need only be conducted if a factual dispute exists which cannot be resolved on the papers alone" (Jaffe v Jaffe, 44 AD3d 825, 826 [2d Dept 2007]). "Generally, a court may, in its discretion, grant relief that is warranted by the facts plainly appearing on the papers on both sides, if the relief granted is not too dramatically unlike the relief sought, the proof offered supports it, and there is no prejudice to any party" (Caro v Marsh USA, Inc., 101 AD3d 1068, [2d Dept 2012]).

The first element stipulated by the Court of Appeals is satisfied here because the temporary order of visitation, and continued orders, were clear and unequivocal. Petitioner's assertion to the contrary is incorrect (Hazelwood affirmation ¶ 17-19). Not only is the written language of the order clear, but Referee Brenes reiterated at both the May 16, 2022 and June 13, 2022 conferences that Respondent was to have parenting time with the children and stated that the order of protection is subject to the temporary order of visitation. At the May 16, 2022 conference she also denied Petitioner's May 16, 2022 request that the parenting time be supervised. Her instructions, both on the record and in the written order, were clear and unequivocal. Therefore, this element is satisfied.

Second, the order was disobeyed. Petitioner attests in her affidavit that she intentionally did not send the children for the court-ordered parenting time with Respondent (S.S. affidavit in opposition ¶ 5 ["On May 20, 2022, I still had not received an order from the court, and I did not send the children for visitation."; ¶ 7 ["On July 1, 2022, I did not send the children for visit with Mr. [S.] because the children's attorney had not yet spoken with the children to address the children's concerns."]). Assuming arguendo that the court excuses Petitioner's failure to produce the children for the weekend of May 20, 2022 and subsequent weekends when the criminal order of protection restricted Respondent's access to the children, the order was nevertheless violated on the weekends of June 24, 2022, July 1, 2022, and July 8, 2022. It is undisputed that Petitioner failed to produce the children on these dates, which prevented Respondent from exercising his court ordered parenting time. Petitioner's contention that Respondent must demonstrate that she "has failed to make good faith attempts to comply with the court's order" is unavailing because no such showing is required under New York law (see El-Dehdan, 26 NY3d at 36 ["Wilfulness is not an element of civil contempt ... civil contempt is established, regardless of the contemnor's motive, when disobedience of the court's order "defeats, impairs, impedes, or prejudices the rights or remedies of a party"]).

Moreover, Petitioner's explanations for violating the court's orders are contrary to the record and, even if accepted as true, do not excuse her failure to comply with the clear order of the court. Respondent did not raise any safety concerns at either the May 16, 2022 or June 13, 2022 conference with Referee Brenes, where the attorney for the children consistently reported, at each court appearance, that the children love their father and want to spend time with him. Additionally, Petitioner was appointed counsel on June 14, 2022, and was always represented by counsel thereafter. Therefore, she had the necessary counsel and resources to petition the court to suspend visitation if appropriate but did not do so. Instead, Petitioner opted to substitute her own judgment for that of the court, which had clearly directed, on two separate occasions, that Respondent was to have parenting time with the children every weekend. Therefore, the second element necessary for a finding of contempt is satisfied.

Petitioner was also aware of the court's orders. She attended each court conference where the orders were issued and, except the May 16, 2022 order, she was in receipt of the court's orders prior to the start of the parenting time in question. Although the court order was not immediately disseminated to Petitioner due to a clerical error, it is uncontroverted that Petitioner was present at the court conference wherein the parties were directed to comply with court-ordered visitation. Petitioner does not dispute that she was aware of the court's orders at any time. Therefore, the third element is met.

Finally, Respondent's rights were prejudiced because he was not permitted to exercise the court-ordered parenting time. The natural right to visitation is a joint right of the noncustodial parent and the child (Gottlieb v Gottlieb, 137 AD3d 614, 619 [1st Dept 2016]). "Consequently, it is presumed that parental visitation is in the best interest of the child, absent proof that such visitation would be harmful" (id.) By failing to produce the children for court-ordered visitation, Petitioner prejudiced Respondent's right to exercise parenting time with the children (see Matthew A. v Jennifer A., 73 Misc 3d 1215(A), *16 [Sup Ct Monroe County 2021]["To suggest that a father is not `harmed' or `prejudiced' by the willful and intentional destruction of his negotiated joint custody rights and his right to visit with his children is an argument that violates every principle in New York's family law."]). Therefore, Respondent has demonstrated this element of civil contempt.

Whereas Respondent has demonstrated all of the elements of contempt by clear and convincing evidence, the court finds that Petitioner is in contempt of the court for failing to comply with the courts temporary orders of visitation dated May 16, 2022 and June 13, 2022. Having made this determination, the court must now determine the appropriate penalty. The purpose of any penalty imposed is not to punish but rather, to compensate the aggrieved party and to coerce compliance with the court's mandate (State of NY v Unique Ideas, 44 NY2d 345, 350 [1978]; Larisa F. v Michael S., 122 Misc 2d 520, 521 (Fam Ct Queens County 1984]). Respondent seeks an order of commitment, an award of sole legal and physical custody to Respondent, that Petitioner's parenting time be limited to supervised visitation only, and for such other and further relief as the court deems just and proper.

With respect to the request for supervised visitation, Respondent did not raise any safety concerns on this motion regarding Petitioner's parenting that warrants limiting her parenting time to supervised visitation only. Additionally, although some courts have suggested that a change in custody may result from a finding of contempt under certain circumstances (see Heintz v Heintz, 28 AD3d 1154, [4th Dept 2006), this is strongly the minority position and is not an appropriate result here. Respondent withdrew his custody petition on March 29, 2022 after Petitioner filed her own motion for contempt and does not currently have a custody petition pending before this court. If Respondent wishes to seek an order of custody, he may do so by following the proper procedure.

Finally, the court must consider Respondent's request for an order of commitment. The violations in question here took place over a period of eight weekends and Petitioner has complied with the temporary order of visitation since that time. Therefore, an order of commitment, which is designed to compel compliance with the court's orders, would serve no purpose at this time (see Rubin v Rubin, 78 AD3d 812, 813 [2d Dept 2010]). Respondent should instead be compensated for what was lost—namely, valuable bonding time with the children. Therefore, it is the order of the court that Respondent shall have, in addition to the weekend parenting schedule currently in place, makeup overnight parenting time on the following school holidays: November 11, 2022, November 24, 2022, November 25, 2022, December 26, 2022 through January 2, 2023, January 16, 2023, February 20, 2023 through February 24, 2023, April 6, 2022, and April 7, 2022. The pickup and drop off schedule for these visits shall be as follows:

November 10, 2022 at 5:00 p.m. through November 13, 2022 at 6:00 p.m.

November 23, 2022 at 5:00 p.m. through November 27, 2022 at 6:00 p.m.

December 23, 2022 at 5:00 p.m. through January 2, 2023 at 6:00 p.m.

January 12, 2023 at 5:00 p.m. through January 16, 2023 at 6:00 p.m.

February 17, 2023 at 5:00 p.m. through February 26, 2022 at 6:00 p.m.

April 5, 2023 at 5:00 p.m. through April 9, 2023 at 6:00 p.m.

Any failure on the part of Petitioner to produce the children to Respondent on these dates, absent just cause, shall result in further findings of contempt punishable by an order of commitment."