JOINT LEGAL CUSTODY AND FINAL DECISION MAKING

A cautionary warning when drafting these clauses in a divorce/separation agreement.

KS v. JS, 2024 NY Slip Op 51418 - NY: Supreme Court, Putnam 2024:

"VICTOR G. GROSSMAN, J.

It is ORDERED that the application is disposed of as follows:

THE STIPULATION

This is a contested matrimonial action. On June 25, 2024, the parties placed an oral stipulation (the "Stipulation") relative to the custody of their two young children on the record in open court. The transcript of the proceeding was "so ordered" by the Court. So far as pertains to the dispute presently before the Court, the transcript states as follows:

Ms. Gallo: Your Honor, I believe that we reached a settlement based on what the AFC has told us. . . . I do believe that we can probably put the bullet points of the settlement on the record, but it will be subject to a complete custody and access stipulation that we would then ask the Court to so order

. . . . .

The Court: Is it the parties' intention that the bullet points will be controlling unless or until a formal document is executed?

Ms. Gallo: Yes, Your Honor.

The Court: Okay. Is that your understanding as well?

Ms. Dewbury: Yes, Your Honor.

The Court: All right. And, Mr. Deurso, is that your understanding as well?

Mr. Deurso: Yes, Judge, that's my understanding.

Ms. Gallo: The parties in this matter will have joint legal custody of the two minor children, L.S. and Lu. S. The parties are going to utilize John Pappalardo as a parent coordinator solely for major decisions of health, education and religion. . . . There will also be — the parties will be guided by the recommendation of the PC in making major decisions. And the party who the PC is in agreement with will be able to implement their decision subject to the other party's right to seek a stay from a court of competent jurisdiction. . . . With respect to the residential custody of the children, the Plaintiff will have primary residential custody of the children subject to the Defendant's access schedule with the children which will be as follows:. . . .

(Transcript, June 25, 2024, pp. 4-6)

DEFENDANT'S APPLICATION

Plaintiff thereafter took unilateral action with respect to the children which Defendant claims violated his rights under the Stipulation as a parent enjoying joint legal custody of the children. Defendant in consequence filed the present application for an order as follows:

1. Declaring and/or directing that the parties' June 25, 2024 joint custody agreement, which was "So Ordered" by this Court:

(a) requires the parties to engage in good faith consultation (email exchanges to suffice) regarding all important or major decisions (hereinafter "Major Decisions") concerning the parties' two minor children . . . prior to the [i] submission of unresolved Major Decisions related to the health, education and religion of/for the Children to the parties' agreed on parent coordinator; and [ii] implementation of any other Major Decisions concerning the Children;

(b) precludes either party from unilaterally implementing any Major Decisions absent the issuance of a recommendation by the parties' agreed on parent coordinator (related to the health, education and religion of/for the Children) or without the express written consent or agreement of the other party regarding any other Major Decisions concerning the Children;

2. Declaring that Major Decisions concerning the Children include health, education and religious decisions of the Children, as well as decisions or issues relating to dental, therapeutic, psychiatric, extracurricular activities (both school related and activities unrelated to school), summer camp, summer programs, day care, day care facilities, and tutoring of/for the Children;

3. Declaring that if either party unilaterally implements any Major Decisions concerning the Children without the express written consent of the other party or the issuance of a recommendation by the parties' agreed on parent coordinator with regard to health, education and religious decisions concerning the Children, the other party shall not be required to contribute to the cost of any unilaterally implemented Major Decisions . . .

Plaintiff in opposition asserts that the Stipulation unambiguously restricts "Major Decisions" to those concerning "health, education and religion."

LEGAL ANALYSIS

A. The Construction of Matrimonial Settlement Agreements

A matrimonial settlement agreement is a contract subject to principles of contract interpretation. See, Rainbow v. Swisher, 72 NY2d 106, 109 (1988). The rule applies to oral stipulations placed on the record in open court: "[a]n oral stipulation of settlement that is made in open court . . . is enforceable as a contract and is governed by general contract principles for its interpretation and effect; [t]he role of the court is to determine the intent and purpose of the stipulation based on an examination of the record as a whole." Scherer v. North Shore Car Wash Corp., 72 AD3d 927, 929 (2d Dept. 2010); Koppie v. Koppie, 62 AD3d 666, 667 (2d Dept. 2009); Flannery v. Flannery, 54 AD3d 804 (2d Dept. 2008).

The plain text of the agreement is the best source of the parties' intent. See, Goldman v. White Plains Center for Nursing Care, 11 NY3d 173, 176 (2008); Burns v. Burns, 163 AD3d 210, 213 (4th Dept. 2018). "Where . . . the contract is clear and unambiguous on its face, the intent of the parties must be gleaned from within the four corners of the instrument, and not from extrinsic evidence (Nichols v. Nichols, 306 NY 490, 496 . . .)." Rainbow v. Swisher, supra, 72 NY2d at 109.

B. The Parties' Positions

Here, however, the parties offer conflicting interpretations of the Stipulation.

According to Defendant:

The parties in this matter agreed to share joint legal custody of the Children. Neither has final decision-making authority and neither has the unilateral right to implement any important or major decisions regarding the children . . . [J]oint legal custody encompasses more than only the health, education and religious decisions that the parties agreed to submit to a parenting coordinator in the absence of an agreement between themselves.

(Kesten Aff. ¶¶ 2, 3)

Plaintiff is wrong in even suggesting that the parties' agreed that "health, education and religion" are the only "major decisions" that exist or require joint decisions. They are simply the only categories of major issues for which the parties made alternate or tie breaking resolution arrangements if they were unable to mutually agree on a decision relating to those three categories on their own.

(Kesten Reply Aff. ¶4)

According to Plaintiff:

Defendant's contention that the Stipulation only prescribes which Major Decisions will be submitted to the Parent Coordinator and does not actually define the ambit of Major Decisions in general is not accurate. The Parties agreed that the Parent Coordinator would be used to resolve Major Decisions regarding health, education and religion on which the Parties could not agree and intentionally limited the scope of those decisions to those three (3) specific categories. Defendant's argument that entire unidentified swathes of Major Decisions could exist (and that they are without any mechanism for resolution) defies logic.

(Gallo Aff. ¶9)

The very nature of family matters is highly discretionary, individualized, and flexible and there is no statutory definition of what constitutes a Major Decision or, for that matter, even joint legal custody . . . The purpose of designating Major Decisions (and attendant dispute resolution mechanisms) is to distinguish a subset of particularly consequential decisions that require a greater degree of coordination and input between divorced parents. Doing so accomplishes the dual purpose of ensuring that both parents are involved in making the most significant types of decisions while also exempting the dozens of less significant decisions from time consuming and conflict-inducing back and forth.

(Gallo Aff. ¶¶ 15, 16)

C. A Literal Reading of the Stipulation

On a purely literal reading of the language of the Stipulation, it would appear that Defendant has the better of the textual argument. The critical language, once again, is:

The parties in this matter will have joint legal custody of the two minor children, L.S. and Lu.S. The parties are going to utilize John Pappalardo as a parent coordinator solely for major decisions of health, education and religion. . . .

The parties by this language agreed to "joint legal custody" without qualification, i.e., without delimitation of the areas of the children's life to which it applies. That they agreed to use a PC "solely for major decisions of health, education and religion" is naturally read, as Defendant suggests, as carving out a subset of issues for reference to the PC when the parents reach an impasse.

D. Construction in the Event of Ambiguity

Plaintiff's view — that providing a mechanism of resolution "solely for major decisions of health, education and religion" effectively limited the scope of "joint legal custody" — goes beyond the literal language of the Stipulation and rests on an argument that given the fluid and ill-defined nature of such things as "family matters", "joint legal custody", and "major decisions", it "defies logic" to suggest that the parties would go to the trouble of specifying a mechanism of resolution for only a subset of the major decisions on which the parents could disagree under a regime of joint legal custody. If and to the extent that Plaintiff's interpretation gives rise to an ambiguity requiring resort to extrinsic aids to reach a proper construction of the Stipulation, it invites consideration of the law of "joint legal custody", which was certainly present to the minds of practitioners as learned and astute as those representing the parties herein.

In Dolman v. United States Trust Co. of NY, 2 NY2d 110 (1956), the Court of Appeals wrote:

[I]t is basic that, unless a contract provides otherwise, the law in force at the time the agreement is entered into becomes as much a part of the agreement as though it were expressed or referred to therein, for it is presumed that the parties had such law in contemplation when the contract was made and the contract will be construed in the light of such law.

Id., 2 NY2d at 116. Elaborating on Dolman, the Fourth Department has written:

The Dolman rule is of longstanding vintage, and the "principle embraces alike those [laws in force at the time of a contract's execution] which affect its validity, construction, discharge, and enforcement" (Von Hoffman v. City of Quincy, 71 U.S. (4 Wall.) 535, 550 . . . [1866] [italics added in Burns]. By virtue of the Dolman rule, when parties enter into an agreement authorized by or related to a particular statutory scheme, the courts will presume — absent something to the contrary — that the terms of the agreement are to be interpreted consistently with the corresponding statutory scheme [cit.om.].

Burns v. Burns, supra, 163 AD3d at 214. Broaching the issue from the perspective of the parties' reasonable expectations, the First Department has observed:

Besides the common meaning of the language employed, the expectations and purposes of the parties in view of the factual context in which the agreement was made must be considered in interpreting a contract term, with due regard to the parties' sophistication [cit.om.]. With respect to reasonable expectations, it is axiomatic that the parties to an agreement will interpret the instrument governing their relationship in accordance with existing law [cit.om.].

Madison Avenue Leasehold, LLC v. Madison Bentley Associates LLC, 30 AD3d 1, 8 (1st Dept. 2006).

E. Construction of the Stipulation in Light of the Law of Joint Legal Custody

There are two salient points to be made concerning "joint legal custody", the first having to do with its meaning and scope, the second having to do with the circumstances wherein it may appropriately be implemented.

"Joint custody . . . reposes in both parents a shared responsibility for and control of a child's upbringing." Braiman v. Braiman, 44 NY2d 584, 589 (1978); Matter of Argila v. Edelman, 174 AD3d 521, 523 (2d Dept. 2019). In Trapp v. Trapp, 136 AD2d 178 (1st Dept. 1988), the First Department elaborated on the concept:

In joint legal custody . . . although the children actually live with only one parent, both parents continue to share the same rights and responsibilities as they did during the marriage to participate in the decisions affecting their children. In this situation, the day-to-day child rearing decisions are made by the parent with whom the children are living, while decisions with respect to the important issues, such as religious training, education and medical care, and sometimes even less significant matters, such as discipline, diet and the choice of a summer camp, are jointly made. [cit.om.].

Trapp, supra, 136 AD2d at 180-181. See, Tippins, New York Matrimonial Law and Practice, Vol. 3, §21.2, p. 205 (2021) ("Joint custody, to work effectively, requires that the parents be able to consult and agree upon decisions of major import to the lives of their children. At a minimum, such decisions typically encompass medical, religious, and educational issues." [emphasis added]). As the Trapp Court pointedly observed, "there has been no uniform application of the term `joint custody' and no single arrangement which results when a joint award is made." Id., at 181 (quoting Dodd v. Dodd, 93 Misc 2d 641, 644-645 [Sup. Ct. NY Co. 1978]). See also, Taylor v. Taylor, 306 Md. 290, 296, 508 A.2d 964, 967 (Md. 1986) ("Legal custody carries with it the right and obligation to make long range decisions involving education, religious training, discipline, medical care, and other matters of major significance concerning the child's life and welfare" [emphasis added]).

A number of states have enacted statutes defining joint legal custody. Thus:

• Cal.Fam.Code §3003: "`oint legal custody' means both parents shall share the right and the responsibility to make the decisions relating to the health, education, and welfare of a child."

• Ga.Code Ann. §19-9-6(5): "`Joint legal custody' means both parents have equal rights and responsibilities for major decisions concerning the child, including the child's education, health care, extracurricular activities, and religious training; provided, however, that the judge may designate one parent to have sole power to make certain decisions while both parents retain equal rights and responsibilities for other decisions."

• Idaho Code §32-717B(3): "`Joint legal custody' means a judicial determination that the parents or parties are required to share the decision-making rights, responsibilities and authority relating to the health, education and general welfare of a child or children."

• Mass.Gen.Laws.Ann. 208 §31: "`Shared legal custody', continued mutual responsibility and involvement by both parents in major decisions regarding the child's welfare including matters of education, medical care and emotional, moral and religious development."

• Mich.Comp.Laws.Ann. §722.26a(7): "As used in this section, `joint custody' means an order of the court in which one or both of the following is specified: (a) That the child shall reside alternately for specific periods with each of the parents. (b) That the parents shall share decision-making authority as to important decisions affecting the welfare of the child.

• Minn.Stat.Ann. §518.003(3)(b): "`Joint legal custody' means that both parents have equal rights and responsibilities, including the right to participate in major decisions concerning the child's upbringing, including education, health care, and religious training."

• Miss.Code.Ann. §93-5-24(5)(e): "For the purposes of this section, `joint legal custody' means that the parents or parties share the decision-making rights, the responsibilities and the authority relating to the health, education and welfare of a child. An award of joint legal custody obligates the parties to exchange information concerning the health, education and welfare of the minor child, and to confer with one another in the exercise of decision-making rights, responsibilities and authority.

• Vernon's.Ann.Missouri Stat. §452.375(1)(2): "`Joint legal custody' means that the parents share the decision-making rights, responsibilities, and authority relating to the health, education and welfare of the child, and, unless allocated, apportioned, or decreed, the parents shall confer with one another in the exercise of decision-making rights, responsibilities, and authority."

• N.J.S.A. §9:2-4(a): "In any proceeding involving the custody of a minor child, the rights of both parents shall be equal and the court shall enter an order which may include (a) Joint custody of a minor child to both parents, which is comprised of legal custody or physical custody which shall include . . . (2) provisions for consultation between the parents in making major decisions regarding the child's health, education and general welfare."

• New.Mex.Stat.Ann. §40-4-9.1(J)(3, 4): "An award of joint custody means that . . . (3) the parents shall consult with each other on major decisions involving the child before implementing those decisions; that is, neither parent shall make a decision or take action which results in a major change in the child's life until the matter has been discussed with the other parent and the parents agree." The "major changes" referenced in subdivision "4" are: changes in home city or state of residence; changes in religious denomination and religious activities; type of education, public or private; major elective medical or dental treatment; and changes in recreational activities.

• Oregon.Rev.Stat. §107.169(1): "As used in this chapter, `joint custody' means an arrangement by which parents share rights and responsibilities for major decisions concerning the child, including, but not limited to, the child's residence, education, health care and religious training."

• S.Dak.Cod.Laws §25-5-7.1: "In any custody dispute between parents, the court may order joint legal custody so that both parents retain full parental rights and responsibilities with respect to their child and so that both parents must confer on, and participate in, major decisions affecting the welfare of the child. . . . If it appears to the court to be in the best interest of the child, the court may order, or the parties may agree, how any such responsibility shall be divided. Such areas of responsibility may include the child's primary physical residence, child care, education, extracurricular activities, medical and dental care, religious instruction, the child's use of motor vehicles, and any other responsibilities which the court finds unique to a particular family or in the best interest of the child. . . ."

• Vermont.Stat.Ann. §664(1)(A): "`Legal responsibility' means the rights and responsi-bilites to determine and control various matters affecting a child's welfare and upbringing other than routine daily care and control of the child. These matters include but are not limited to education, medical and dental care, religion and travel arrangements. Legal responsibility may be held solely or may be divided or shared."

• Wisc.Stat. §767.001(2): "`Legal custody' means . . . the right and responsibility to make major decisions concerning the child, except with respect to specified decisions as set forth by the court or the parties in the final judgment or order . . . `Major decisions' includes, but is not limited to, decisions regarding consent to marry, consent to enter military service, consent to obtain a motor vehicle operator's license, authorization for nonemergency health care and choice of school and religion."

The foregoing caselaw and statutory authority teaches that while shared responsibility for major decisions concerning a child's religion, education and health is at the core of joint legal custody, those three categories do not exhaust the areas of a child's life that may be subject to consultation and mutual decision-making by parents under a joint custody arrangement.

In New York, mutual control over issues pertaining to religion/education/health would, as Professor Tippins notes, constitute a minimal version of joint legal custody. See also, Trapp v. Trapp, supra. However, New York courts, as Defendant aptly observes, often interpret joint legal custody more broadly, not only by taking an expansive view of what falls under the rubric of "education" or "health", but also by including, for example, such things as extracurricular activities and summer camp. See, Chamberlain v. Chamberlain, 24 AD3d 589, 593 (2d Dept. 2005); Winslow v. Winslow, 205 AD2d 620 (2d Dept. 1994); Wideman v. Wideman, 38 AD3d 1318 (4th Dept. 2007); A.F. v. T.F., 83 Misc 3d 1228(A) (Sup. Ct. Westchester Co. 2024); D.A. v. C.A., 83 Misc 3d 1214(A) (Sup. Ct. Westchester Co. 2024); N.F. v. O.F., 82 Misc 3d 1240(A) (Sup. Ct. Westchester Co. 2024); M.R. v. A.D., 32 Misc 3d 1512 (Sup. Ct. NY Co. 2011). Other states by statute codify a broad view of joint legal custody by means of the definition of major decisions which require consultation and mutual decision-making: in many cases by incorporating such all-encompassing terms as the child's "welfare" or "general welfare", in others by adding to religion/education/health such other categories as extracurricular activities, change of residence, change of recreational activities, child care, travel arrangements, and/or use of motor vehicles.

Thus, when the parties agreed to joint legal custody of their two minor children without explicit definition or limitation, they may prima facie be deemed to have intended a regime of mutual decision-making on a scale reflected in the law, as summarized above.

However, that does not conclude the analysis. In Matter of Hreat v. Hreat, 189 AD3d 1237 (2d Dept. 2020), the Second Department, quoting Braiman v. Braiman, supra, wrote:

"[J]oint custody is encouraged primarily as a voluntary alternative for relatively stable, amicable parents behaving in mature civilized fashion" (Braiman v. Braiman, 44 NY2d 584, 589-590 [1978]). "However, joint custody is inappropriate where the parties are antagonistic toward each other and have demonstrated an inability to cooperate on matters concerning the child" (Matter of Gorniok v. Zeledon-Mussio, 82 AD3d 767, 768 [2011] . . .).

Hreat, supra, 189 AD3d at 1238. See, Trapp v. Trapp, supra, 136 AD2d at 181 (same). See also, Tippins, New York Matrimonial Law and Practice, Vol. 3, §§ 21.2-21.4, pp. 204-217 (2021). Professor Tippins takes a markedly cynical view of the prospects of joint legal custody for success. He observes inter alia:

• "[Joint legal custody] was a nice `touchy-feely' ring to it and is often touted as a potential panacea to the deadly disorders which commonly emerge from a custody contest. Unfortunately, like so many altruistic alternatives postulated in the realm of domestic relations, joint custody is often more appealing on paper than it is workable in the heat of a family fray." Id., at 204.

• "Joint custody, to work effectively, requires that the parents be able to consult and agree upon decisions of major import to the lives of their children . . . This sharing of the decision-making process is at once the hallmark and the downfall of joint custody as a practical solution to many custody disputes. It is often quipped within the matrimonial bar that if the parties could get along well enough to navigate such choppy custodial waters, they would not have needed to divorce in the first place. While this aphorism may be overstated, practice experience indicates that it is a rare couple who can transcend the incidents of their own estrangement and effectuate postdivorce coparenting in a meaningful and amicable way. Id., at 205.

• Professor Tippins goes on to reference "[t]he almost infinite potential for mismanaged or maliciously managed joint custody to inflict instability and psychological harm upon the child" (id., at 211), and observes: "The Braiman decision requires mutual cooperation and parental good-faith as a precondition to joint custody. Because these are scarce and precious commodities in matrimonial disputes, the courts have not been inclined to award joint custody where it is opposed by either parent and where the requisite mutual cooperation is unlikely. The decisions occasionally observe that no matter how attractive joint custody may seem in concept, the commonly encountered lack of parental cooperation renders it impractical in application and potentially detrimental to the best interests of the children." Id., at 212-213.

Query, whether in the circumstances of this case the "preconditions" for a successful joint custody arrangement—mutual cooperation and parental good faith—are so patently lacking that, as Plaintiff urges, it would "defy logic" to find that she agreed to a custody stipulation wherein "unidentified swathes of Major Decisions" exist that are "without any mechanism for resolution"?

The Court notes in this regard that (1) Plaintiff without notice to Defendant left the marital home and removed the children to New Jersey; (2) Defendant improperly and without notice to Plaintiff accessed confidential information on her electronic devices; (3) Plaintiff was so mistrustful of Defendant that when she returned to New York from New Jersey she did not want to disclose her new address to Defendant; and (4) the parties have spent inordinate sums of money—well beyond their personal means—for attorneys fees to litigate an incontestably acrimonious matrimonial litigation. This does indeed suggest to the Court that the parties may not be able to overcome "the incidents of their own estrangement" sufficiently to succeed under a regimen of joint legal custody.

However, it proves too much—why then did Plaintiff agree to joint legal custody at all? Even the limited version of joint legal custody for which Plaintiff advocates is fraught with difficulty. Although the parties are both Catholic it has been made plain herein that disagreement on religious issues was one of the precipitating factors in the demise of their marriage—and yet they have undisputably agreed to mutual decision-making on religion for their children. Choice of schools has also been a significant bone of contention, much discussed in open court, and yet the parties have also undisputably agreed to mutual decision-making regarding the education of their children.

As for the absence of a specified mechanism for resolving issues other than religion/education/health, the Court notes that the Stipulation made in open court contained only the "bullet points" of a custody settlement "subject to a complete custody and access stipulation that we would then ask the Court to so order." The parties are, of course, obligated to negotiate the final custody and access stipulation in good faith. Some matters subject to consultation and mutual decision-making do not rise to the level where the involvement of a PC would be necessary or appropriate. The parties are free to negotiate a more informal dispute resolution mechanism for such matters, or to allocate final authority/responsibility for certain decisions to one party or the other. Moreover, the scope of the final joint custody agreement is constrained by certain relatively well-defined parameters governing its mutual decision-making component. First, as the very term denotes, it applies only to "decisions" and not, for example, to preparatory or executive measures undertaken in connection with decisions. Second, the "decisions" must rise above "day-to-day child rearing decisions", which are entrusted exclusively to "the parent with whom the children are living." See, Trapp v. Trapp, supra.

In conclusion, the Court after considering the law of joint legal custody finds nothing therein that would displace a construction of the parties' Stipulation in accord with the plain meaning of the language they employed. The Court accordingly adheres to its conclusion that by this language the parties agreed to "joint legal custody" without qualification, i.e., without delimitation (other than that inherent in the legal term itself) of the areas of the children's life to which it applies; and further, that their agreement to use a PC "solely for major decisions of health, education and religion" is naturally read not as a limitation of the issues subject to consultation and mutual decision-making, but as carving out a subset of those issues for reference to the PC when the parents reach an impasse.

F. The Specific Actions Complained Of

While joint legal custody requires mutual cooperation on major decisions concerning the children, it also requires on the part of each parent a measure of trust in the good faith and sound judgment of the other, i.e., a recognition that despite their own differences each acts with the true good of the children at heart. The Court finds that Defendant's view of what joint legal custody requires of the parties is incorrect with respect to most of the specific actions by Plaintiff of which he complains.

• The choice of an extended summer camp or program would seem to qualify as a major decision, inasmuch as it would have a significant bearing on the child's well-being and education. Here, however, Plaintiff merely enrolled Lu. at L.'s camp for four days during her own parenting time. As a short-term recreational activity confined to Plaintiff's time with the child, that choice has none of the earmarks of a major decision and was entrusted exclusively to the Plaintiff.

• Similarly, the choice of an extended day care arrangement would seem to qualify as a major decision. In this day and age most day care facilities have and indeed tout educational programs even for two-year olds, as witness here the fact that what Plaintiff calls a day care presents itself as a "nursey school & kindergarten." However, the parties acknowledged in proceedings before this Court that Plaintiff was faced with a need to take prompt action to make arrangements for L. and Lu. upon her recent move, just before the start of the school year, back to New York. Under the circumstances, Plaintiff cannot be faulted for enrolling Lu. after providing Defendant with information concerning the alternatives.

• Taking L. on a new-school visit to get acquainted with the environment, filling out school forms, and bringing him to the doctor for a regularly scheduled physical exam are not "decisions", never mind major decisions. These are all purely executive measures entrusted to the discretion of each parent on his or her own time with the children.

• Plaintiff is free to choose her own Catholic parish, to register the children in her parish, and to take the children to Mass with her when she has them on Sunday. Defendant is likewise free to choose his own Catholic parish, to register the children in his parish, and to take the children to Mass with him when he has them on Sunday. Registration is a purely administrative matter with no impact on the children's religious upbringing. On the other hand, whether they attend Catholic school, where they attend Catholic school, where they pursue religious education, and where they receive their Sacraments are major decisions subject to consultation and mutual decision-making.

G. Conclusion

Items numbered "1(a)" and "2" of Defendant's Order to Show Cause for a declaration concerning the scope and meaning of the parties' June 25, 2024 Stipulation in open court relative to the custody of their minor children are granted to the extent indicated hereinabove. Items numbered "1(b)" and "3" of the said Order to Show Cause are denied, as they relate to matters which remain to be negotiated in good faith as part of the complete custody and access agreement contemplated by the June 25, 2024 Stipulation, the terms of which cannot—without trying custody issues to a conclusion—be imposed upon the parties by the Court.

IT IS SO ORDERED.

The foregoing constitutes the decision and order of the Court."

VACATING AN ACKNOWLEDGEMENT OF PARENTAGE ON MUTUAL MISTAKE

I

n this case, to set aside an acknowledgment of parentage, more than oral testimony is needed if the grounds are mutual mistake. "Family Ct Act §516-a (a). Sixty days after the expiration of the time limits set forth in paragraphs (i) and (ii) of Family Court Act 516 any of the signatories to an acknowledgment of parentage may challenge the acknowledgment in court by alleging and proving (emphasis added) fraud, duress, or material mistake of fact. Family Ct Act §516-a (b)(iv)

Carla A N-N v. Steven J U-G, Date filed: 2024-10-03, Court: Family Court, Queens, Judge: Support Magistrate Sandra Stines, Case Number: 221356:

"FINDINGS of FACT Support Magistrate Sandra Stines, makes the following decision/ findings of fact after trial: Procedural history

On March 14, 2024 Carla A N-N, Petitioner (hereinafter Ms. N-N) filed a “petition to vacate acknowledgment of parentage” against Steven J U-G, Respondent (hereinafter Mr. U-G). See, Petition to Vacate Acknowledgment of Parentage, Queens County Family Court Docket P-06147-24.

On October 1, 2024, Ms. N-N and Mr. U-G appeared (both waiving counsel) for trial. The Court heard their testimony. At the close of proof decision was reserved.

Evidence

Testimony

Ms. N-N’s testimony

Ms. N-N testified “when I signed the acknowledgment of parentage I believed that Mr. U-G was the father”. At the time of birth, “we both decided to not take the dna test and sign the acknowledgment of parentage”. She “assumed that Mr. U-G was the father” of the child until she had the child take a “dna test” in January 2023 that showed he is not. Ms. N-N “did the dna test for some documents I wanted to take for my daughter”.

Mr. U-G testimony

Mr. U-G testified “I assumed I was the father at the time I signed the acknowledgement of parentage”. Mr. U-G lived with Ms. N-N and subject child for two years but after he took “the dna test” he stopped living or visiting the child because the “dna test” showed he is not the biological father of the child. Mr. U-G has not had contact with the child since last year.

Documentary evidence

Court exhibit 1 Acknowledgment of parentage

Ms. N-N presented two documents for evidence she purported to be dna tests but they were not admitted in evidence because they are hearsay.

Discussion

An acknowledgment of parentage establishes the parentage of and liability for the support of a child. Family Ct Act §516-a (a). Sixty days after the expiration of the time limits set forth in paragraphs (i) and (ii) of Family Court Act 516 any of the signatories to an acknowledgment of parentage may challenge the acknowledgment in court by alleging and proving (emphasis added) fraud, duress, or material mistake of fact. Family Ct Act §516-a (b)(iv). Additionally an acknowledgment of parentage is void if, at the time of signing, any of the following are true: (i) a person other than the signatories is a presumed parent of the child pursuant to section twenty-four of the domestic relations law; (ii) a court has entered a judgment of parentage of the child; (iii) another person has signed a valid acknowledgment of parentage with regard to the child; (iv) the child has a parent pursuant to section 581-303 of the family court act other than the signatories; (v) a signatory is a gamete donor under section 581-302 of the family court act; or (vi) the acknowledgment is signed by a person who asserts that they are a parent under section 581-303 of the family court act of a child conceived through assisted reproduction, but the child was not conceived through assisted reproduction. Family Ct Act §516-a (c) (i)-(vi).

A hearing is required to determine fraud, duress, or material mistake of fact. Matter of Andrew E. v. Angela N.S. 165 A.D.3d 658, 85 N.Y.S. 3d 115 (2d Dept 2018); Family Ct Act §516-a (b)(iv)). This petition alleged “sixty days have elapsed since the signing of the acknowledgement of parentage. The following fraud duress or material mistake of fact has occurred (specify) the respondent is not the biological father but signed the parentage at (child’s name) time of birth. I, the mother assumed that my ex-partner for 3 years was her biological father. We never had a dna test done until later.” At fact-finding Ms. N-N clarified that it was Mr. U-G who she referred to as her ex-partner of 3 years in her petition.

Fraud, requires showing that a person justifiably relied on the other party’s fraudulent statements or representations at the time they signed the acknowledgment of parentage. Matter of Joshua AA. v. Jessica BB., 132 AD3d 1107, 1108, 19 N.Y.S.3d 116 (3d Dept. 2015). Here, neither party alleged that the other made fraudulent statements when signing the acknowledgment of paternity.

Duress requires a showing that a party “was forced to agree to [sign the acknowledgment] by means of a wrongful threat which precluded the exercise of [her] free will’”. Matter of Jeannette GG. v. Lamont HH 77 A.D.3d 1076, 909 N.Y.S. 2d 222 (3d Dept 2010). No such duress was presented herein.

Matter of Wimberly v. Diabo 42 A.D.3d 599, 839 N.Y.S. 2d 822 (3d Dept 2007) addressed mistake of fact to vacate an acknowledgement of parentage where a Respondent alleged he only signed an acknowledgement of parentage because he believed it was necessary to obtain benefits. Relying on principles of contract law the Diabo court held that for mistake of fact, that mistaken fact must be truly material — i.e., substantial and fundamental to the nature of the contract — so as to entitle a party to void that document. Id. Diabo found no mistake of fact to vacate the acknowledgment of parentage. An acknowledgment of parentage is indeed a contract, “generally, a contract entered into under a mutual mistake of fact is voidable and subject to rescission” because it “does not represent the ‘meeting of the minds’ of the parties”. Jerome M. Eisenberg, Inc. v. Hall 48 NYS 3d 71; 147 A.D.3d 602 (1st Dept 2017) (Matter of Gould v. Board of Educ. of Sewanhaka Cent. High School Dist.,81 NY2d 446, 453, 616 NE2d 142, 599 NYS2d 787 [1993]). In order to justify rescission, “[t]he mutual mistake must exist at the time the contract is entered into and must be substantial” (id.). See also, Carney v. Carozza 16 A.D.3d 867, 792 NYS 2d 642 (3d Dept 2005) (A contract or stipulation entered into under a mutual mistake of fact is subject to rescission if such mutual mistake existed at the time the contract was entered into and is so substantial that the agreement does not represent a true meeting of the parties’ minds.

At the time the acknowledgment of paternity here was signed Ms. N-N and Mr. U-G “assumed” i.e., believed that Mr. U-G was the father. Mr. U-G and Ms. N-N acted on that belief cohabitating as a family wherein Mr. U-G was the father. Two years after signing the acknowledgment of parentage, Mr. U-G and Ms. N-N allege their belief that Mr. U-G is the father was a mistake. To support that Ms. N-N submitted two documents which she purported were “dna” results. Those documents were not admitted because they were hearsay. The Guide to New York Evidence, (rule 8.00) (Hearsay is an out of court statement of a declarant offered in evidence to prove the truth of the matter asserted in the statement. The declarant of the statement is a person who is not a witness at the proceeding, or if the declarant is a witness, the witness uttered the statement when the witness was not testifying in the proceeding. A statement of the declarant may be written or oral, or non-verbal, provided the verbal or non-verbal conduct is intended as an assertion.), These documents did not meet hearsay exceptions including CPLR 4518 (a) (Generally. Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible in evidence in proof of that act, transaction, occurrence or event, if the judge finds that it was made in the regular course of any business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter.) CPLR 4518 (d) is a hearsay exception for genetic marker or DNA. See, CPLR 4518(d) (Any records or reports relating to the administration and analysis of a genetic marker or DNA test, including records or reports of the costs of such tests, administered pursuant to sections four hundred eighteen and five hundred thirty-two of the family court act or section one hundred eleven-k of the social services law are admissible in evidence under this rule and are prima facie evidence of the facts contained therein provided they bear a certification or authentication by the head of the hospital, laboratory, department or bureau of a municipal corporation or the state or by an employee delegated for that purpose, or by a qualified physician. If such record or report relating to the administration and analysis of a genetic marker test or DNA test or tests administered pursuant to sections four hundred eighteen and five hundred thirty-two of the family court act or section one hundred eleven-k of the social services law indicates at least a ninety-five percent probability of paternity, the admission of such record or report shall create a rebuttable presumption of paternity, and shall, if unrebutted, establish the paternity of and liability for the support of a child pursuant to articles four and five of the family court act). The documents Ms. N-N did not meet the exceptions in CPLR 4518(d).

Ms. N-N and Mr. U-G testified that they believe that Mr. U-G is not the father of the child herein and that belief is based on “dna test” results they saw. That testimony is hearsay, and their belief is not a fact. Ms. N-N did not present credible evidence that what she claims is a fact is actually a fact because Ms. N-N and Mr. U-G’s belief based on hearsay that now he is not the father is not a fact.

Ms. N-N did not prove that the acknowledgment of parentage was signed under fraud, duress, or due to a material mistake of fact.

Mr. U-G did not oppose the relief sought in Ms. N-N’s petition at the fact finding and at a court appearance on October 1, 2024 said he agreed to vacate the acknowledgement of parentage. But Mr. U-G’s non opposition at fact finding and statement on October 1, 2024 does not change that it is Ms. N-N ‘s burden to prove fraud, duress, or material mistake of fact to vacate the acknowledgment of paternity. Family Ct Act §516-a (b)(iv) Although principles of contract law apply to vacating acknowledgements of parentage, whether two parties to an acknowledgement of parentage agree to vacate same, unlike many contracts that may be vacated upon agreement, such agreement is not a basis for vacatur of acknowledgment of parentage.

Family Ct Act §516-a was enacted for the “timely and efficient establishment of paternity” (see legislative notes thereto). Were it that parties to acknowledgments of parentage did not have to prove fraud, duress, or material mistake of fact at the time the acknowledgments were signed but rather could change their mind based on agreement that would not be efficient and have far reaching effects on children, hence Family Ct Act §516-a (b)(iv). Furthermore every acknowledgment of parentage contains the following, “we understand that signing this acknowledgement of paternity is voluntary and will establish paternity of our child and have the same force and effect of an order of filiation determining paternity…. We have received written notice of our legal rights (including the time frames to withdraw responsibilities alternatives and the consequences of signing the acknowledgement of paternity and we understand what the notice states…we certify that the information we provide below is true”. Those statements were read to the parties on the record, and they acknowledged same. This reflects the intent of Family Ct Act §516-a and gravity of signing an acknowledgment of parentage.

Consistent with the statutory language, if a party fails to meet their burden of proof on the issue of fraud, duress, or material mistake of fact, the court need not order a genetic marker test to determine the child’s paternity. Matter of Mark A.M. v. Lesley R.S. 169 A.D.3d 1046, 92 N.Y.S.3d 902 (2d Dept 2019) (disagreeing with the Family Court’s vacatur of the acknowledgment of paternity, as the petitioner failed to prove that the acknowledgment of paternity was signed by reason of fraud, duress, or material mistake of fact) citing Matter of Westchester County Dept. of Social Servs. v. Robert W. R. 25 AD3d 62, 72, 803 NYS2d 672 (2d Dept 2005]).

Based on the afore-stated the petition herein is denied.

Dated: October 3, 2024"

PET LAW - THE DECISION WITH THE OVERZEALOUS PRO SE LITIGANTS

If you remember the August post about the pro se litigants fighting over their dog and calling the court for a decision (PET LAW - AND OVERZEALOUS PRO SE LITIGANTS), the case has been decided, reminding us once again that pets "are now treated as members of the family under modern, enlightened jurisprudence."

Connolly v. NINA, 2024 NY Slip Op 51422 - Kings Co. Sup. Ct. 2024:

"This case involves a dispute over the ownership and custody of two dogs, Mary Alice, an approximately 12-year-old tan puggle,^[1] and Henry, a five-year-old white chihuahua with patches of black, who are depicted at https://nycourts.gov/reporter/webdocs/ConnollyvNina_Image1.pdf.^[2]

Plaintiff and Defendant both assert strong claims to the dogs, citing ownership, emotional bonds, financial contributions, and caregiving responsibilities. In adjudicating this matter, this Court applies the "best for all concerned" standard established in Raymond v. Lachmann (264 AD2d 340, 341 [1st Dept 1999] [cat to remain where he lived, prospered, loved, and was loved given his age and limited life expectancy], a seminal appellate decision not applying pure ownership as the standard for custody of a pet).

Plaintiff Debrasue Connolly adopted Mary Alice in September 2019 (see July 12, 2024 tr at 6, lines 18-20; plaintiff's exhibit 7) and Henry in 2020 (see plaintiff's exhibit 6). Over the last few years, on various occasions, including when Plaintiff has been hospitalized, she entrusted the dogs to Defendant Venessa Nina, a professional pet caretaker (see July 5, 2024 tr at 6, line 1; 12, lines 13-15; 14, lines 24, through 15, line 8; 14, line 24, through 15, line 8; 19, line 19, through 20, line 2; 23, lines 11-18; July 12, 2024 tr at 37, lines 3-5; 30, lines 22-23). She first engaged Defendant, an animal caregiver who offers dog walking, boarding, and training services, as a pet sitter in May 2020 (see July 5, 2024 tr at 9, lines 17-18) or "toward the end of 2019 or the beginning of 2020" (id. at 14, line 25, through 15, line 1). Defendant has a New York City Department of Health dog handler certification and received a qualifying certificate of animal care and handling also (see July 18, 2024 tr at 28, lines 2-6).

On October 14, 2023, with Mary Alice and Henry accompanying her, Plaintiff trekked out from Manhattan to the beach in Long Beach, Long Island, fell asleep there, and awoke to find her pocketbook and phone gone as well as Henry being in the custody of the local animal control. Animal control called Defendant — not Plaintiff — to retrieve Henry and Mary Alice because Defendant's information was linked to the implanted microchips. Defendant alleged that the microchips were in her name by request due to the frequency of Plaintiff's unanticipated hospitalizations, leading to the dogs' being sent to the pound each time. On previous occasions, Defendant returned the dogs to Plaintiff after having taken care of them for her. Following this incident, however, Defendant elected to maintain custody of the dogs after the shelter allegedly informed her that she would be charged with animal neglect and cruelty should she again yield possession of them to Plaintiff. Plaintiff consequently commenced a pro se suit against Defendant to recover custody of the dogs. (See generally July 5, 2024 tr at 2-15.)

Plaintiff seeks the return of both dogs but would be amenable to the return of Mary Alice only as she feels she is best suited to care for Mary Alice's conditions, including "cherry eye," as well as from bowleggedness. Although Plaintiff claims lawful ownership, she focused on Mary Alice's safety, arguing that Defendant's care was wholly inadequate. Plaintiff asserted Defendant was abusing Mary Alice by taking her on long walks as she has little stamina, bringing her to dog parks as Mary Alice allegedly cannot be around big dogs, allowing Mary Alice to be around Defendant's cats, administering home remedies for Mary Alice's cherry eye condition, and harming Mary Alice with CBD biscuits. Defendant, however, argued that the dogs should not be returned due to unsanitary living conditions in Plaintiff's apartment, the dogs being filthy when living with Plaintiff, the frequency of Plaintiff's sudden absences, the length of these absences, concerns for the safety of the dogs as Plaintiff heavily relied on Defendant to care for them during the absences, Plaintiff's failure to socialize the dogs, Defendant's exposure to prosecution by animal care and control officials if she released the dogs to Plaintiff, and the dogs being microchipped to Defendant. In any event, the dogs are bonded and should not be separated, maintained Defendant. (See generally id. at 13-27.)

The parties attended three evidentiary hearings, on July 5, 12, and 18 of 2024, during which they both provided testimony and documentary evidence regarding their relationship with the dogs. Evidence presented included, among other things, dog licensing documents, microchip confirmations, veterinary records, letters of reference from acquaintances, text messages between Defendant and animal rescue center staff, voicemails Plaintiff sent to Defendant, personal financial records, and photos.^[3]

Procedural Background

This action was commenced by a pro se Plaintiff against a pro se Defendant. Plaintiff's documents did not properly commence the action under New York law, as Plaintiff initiated this matter by filing an order to show cause dated June 27, 2024, a petition, an affidavit of emergency, and various exhibits.^[4] In New York, an action can be commenced in one of three ways: (1) by filing a summons and complaint; (2) by filing a summons with notice; or (3) by filing a summons with notice of motion for summary judgment and supporting papers in lieu of a complaint (see CPLR 304, 3213). Plaintiff did not utilize any of these methods. Additionally, Plaintiff did not cite any statutory provision that would allow her to bring a claim for the return of her dogs within a special proceeding, which is a type of expedited lawsuit commenced with a petition (see CPLR 103[b], 402).

There was no question regarding jurisdiction as Defendant was properly served. Defendant appeared and contested Plaintiff's claim on the merits. However, given the irregular nature of the papers that commenced this action, the Court elected to treat the documents as the equivalent of a summons and complaint combined with a motion for summary judgment (see CPLR 103[c]). Under Judiciary Law § 2-b(3), "A court of record has power . . . (3) to devise and make new process and forms of proceedings, necessary to carry into effect the powers and jurisdiction possessed by it." Further, under CPLR 2101(f), "A defect in the form of a paper, if a substantial right of a party is not prejudiced, shall be disregarded by the court and leave to correct shall be freely given." Courts thereby may exercise flexibility in matters such as this where Plaintiff sought replevin — the return of her dogs — which requires proper commencement of an action. The Court deemed the argument and testimony adduced to be within the context of a hearing on Plaintiff's motion for summary judgment (see July 12, 2024 tr at 7, lines 9-11).^[5]

Summary judgment is a drastic remedy that should be granted only if no triable issues of fact exist and the movant is entitled to judgment as a matter of law (see Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]; Andre v. Pomeroy, 35 NY2d 361 [1974]). Although typically decided on the papers, under CPLR 3212(c), "if it appears that the only triable issues of fact arising on a motion for summary judgment relate to the amount or extent of damages . . . the court may, when appropriate for the expeditious disposition of the controversy, order an immediate trial of such issues of fact raised by the motion. . . ." While this case does not involve damages, the Court opted for an expedited resolution. Both parties did not object to having a trial in this manner, thereby avoiding the lengthy process of discovery and potential delay from placement on a trial calendar.^[6] Consequently, the Court held an evidentiary hearing over the course of three days in July to resolve the issue of custody of the dogs. The Court also found support for proceeding in this manner in CPLR 2218, which provides in pertinent part, "The court may order that an issue of fact raised on a motion shall be separately tried by the court or a referee," as well as in the previously-cited Judiciary Law § 2-b(3) provision, "A court of record has power . . . (3) to devise and make new process and forms of proceedings, necessary to carry into effect the powers and jurisdiction possessed by it."

Legal Standard

Traditionally, New York courts viewed pets as personal property, resolving ownership disputes based on which party held the superior possessory right (see Travis v. Murray, 42 Misc 3d 447, 452-453 [Sup Ct, NY County 2013]). More recently, however, courts recognized the myriad of ways in which companion animals are recognized as much more to their owners than simple possessions (see Pron v. Tymshan, 79 Misc 3d 1235[A], 2023 NY Slip Op 50809[U] [Civ Ct, NY County 2023]). Courts now treat companion animals as a special category of property, which is consistent with underlying public policy to protect the welfare of animals (see Mitchell v. Snider, 51 Misc 3d 1229[A], 2016 NY Slip Op 50877[U] [Civ Ct, NY County 2016]).

Courts have increasingly applied Raymond's "best for all concerned" analysis, balancing a strict property analysis with the more extensive interests analysis involved in child custody cases (see Pron, 2023 NY Slip Op 50809[U], *4). The "best for all concerned" standard combines traditional property elements and intangible or subjective factors involved in custody, such as the emotional bond between the pet and its caretakers, the ability to meet the pet's physical and emotional needs, and the stability and consistency of care provided (see id.; L.B. v. C.C.B., 77 Misc 3d 429 [Sup Ct, Kings County 2022]; Mundo v. Weatherson, 74 Misc 3d 1215[A], 2022 NY Slip Op 50125[U] [Civ Ct, NY County 2022]). "Relevant facts include those that reflect each party's ability to meet the animal's physical and emotional needs, including financial circumstances, access to outdoor activities, opportunities for exercise and socialization, access to veterinary care and necessary supplies, and the time required to meet these needs on a daily basis" (Pron, 2023 NY Slip Op 50809[U], *4). Modern day notions concerning disputed custody of pets led our state's legislature to amend the Domestic Relations Law to mandate that when dividing marital property, "in awarding the possession of a companion animal, the court shall consider the best interest of such animal" (Domestic Relations Law § 236[B][5][d][15]).

In Raymond, the Court determined the custody of a cat. In light of the cat's age and the strong bond between the animal and its caregiver, the Court found that the cat should remain where it had "lived, prospered, loved and been loved for the past four years" (Raymond, 264 AD2d at 341). In Hennet v. Allan (43 Misc 3d 542 [Sup Ct, Albany County 2014]), the Court examined which party had a more genuine right of possession based on their conduct in acquiring and caring for the dog. This required consideration of the parties' relationship with the dog and how care was arranged after one party left their shared home (see Hennet, 43 Misc 3d at 548).

"Although nonhuman animals are not `persons' to whom the writ of habeas corpus applies, the law already recognizes that they are not the equivalent of `things' or `objects.' Unquestionably, nonhuman animals are sentient beings that, albeit without liberty rights, have been afforded many special protections by the New York Legislature—long considered a leader in animal welfare." (Nonhuman Rights Project, Inc. v. Breheny, 38 NY3d 555, 575-576 [2022].) After reciting a plethora of New York statutes protecting the interests of animals, including the aforecited Domestic Relations Law provision, the Court of Appeals noted, "As the foregoing statutes demonstrate, New York law acknowledges that the relationships between humans and nonhuman animals are varied and complex and, in many contexts, the law clearly imposes a duty on humans to treat nonhuman animals with dignity and respect" (id. at 576).

In line with the "best for all concerned" approach and the Court of Appeals' declaration that animals are not mere things or objects, this Court assesses not just the parties' possessory rights but also intangible factors based on each party's ability to meet the dogs' physical and emotional needs. Considering the evidence presented by the parties, this Court focuses on financial circumstances, the competing living environments, access to outdoor activities, opportunities for exercise and socialization, access to veterinary care and necessary medical supplements, the time required to meet these needs on a daily basis, and why each party would benefit from having the dogs in their life (see Pron, 2023 NY Slip Op 50809[U], *4; Mitchell, 2016 NY Slip Op 50877, *3).

Discussion

I. Claims of Ownership

Both parties presented documentation supporting their claims of ownership. Plaintiff testified that Mary Alice and Henry were adopted in her name and are registered under her ownership with New York City health authorities (see July 5, 2024 tr at 8, lines 11-18; plaintiff's exhibit 4). Medical records submitted by Plaintiff listed her as the "owner" (see plaintiff's exhibits 5, 6), and Plaintiff also claimed to have microchipped the dogs (see July 5, 2024 tr at 17, line 25, through 18, line 1; plaintiff's exhibit 2).

Defendant, however, had licensed the dogs at a certain point (see id. at 13, lines 11-13; defendant's exhibit A). She provided documents from 24Petwatch, a registration site for pet microchips, stating that the dogs were microchipped to her, and submitted text messages from Posh Pets Rescue identifying her as the legal owner (see id. tr at 13, lines 7-11; 14, lines 1-7; defendant's exhibits D, E). She submitted animal redemption forms (see defendant's exhibit A) and reunification forms (see defendant's exhibit F). "These are my dogs, and if they go back into her care and something happens to them, I'm responsible," testified Defendant (July 5, 2024 tr at 16, lines 12-14).

Given the contradictory records, the Court finds that traditional markers of ownership are non-dispositive as both parties have strong claims to ownership of Mary Alice and Henry.

II. Financial Capacity to Provide for the Dogs

Plaintiff claimed her financial resources are a significant factor in her ability to care for Mary Alice and Henry. Access to a trust fund left to Plaintiff by her father facilitates the ability to afford premium dog food and veterinary care (see July 12, 2024 tr at 41, lines 22-25; July 18, 2024 tr at 35, lines 2-23), but Plaintiff also revealed that the trust administrator has at times denied or delayed requests for payments (see July 18, 2024 tr at 34-37, 46-47). "They pay my bills but it's very difficult to get them to pay anything so I'm having difficulty with them" (id. at 35, lines 9-11). The trust is labeled a special needs one and it succeeded Plaintiff's sister as trustee after the sister resigned, by order of the Surrogate's Court (see id. at 36, lines 4-5, 41, line 10, through 42, line 14).

Although Plaintiff paid the dogs' medical and general expenses, Defendant also demonstrated that she consistently covered the dogs' daily expenses while in her care. Defendant asserted that she provides food, shelter, and medical treatments using her own funds (see July 5, 2024 tr at 22, lines 13-25; July 12, 2024 tr at 40, lines 6-10, 20-21). Overall, this factor tips narrowly in favor of Defendant, whose access to funds necessary for the dogs' care is not limited by a third party. Were Plaintiff's trustee to be more accommodating, her access to a trust containing around $500,000 (see July 18, 2024 tr at 35, line 23) would militate in favor of Plaintiff in terms of financial capability.

III. Emotional Bond, Caregiving, and Pet Life

Both parties share a deep emotional bond with the dogs, as evidenced by testimony regarding their personal relationships with Mary Alice and Henry. Clearly, Mary Alice and Henry served as emotional companions for Plaintiff. "They are my babies. I love them so much. This has devastated me. All I do is pace and drink water" (July 12, 2024 tr at 31, lines 3-5), was but one of Plaintiff's numerous expressions of affection for the dogs.

The following testimony encapsulates Plaintiff's feelings toward Mary Alice:

Mary Alice is a dog who came from a history of torture. And I've taken her to two specialists. I don't know if you had a chance to review the records that I submitted last week. She has dry eye. She's on her way to being blind in both eyes. She needs to go to the vet immediately for both her eyes and her legs. I applaud Venessa for getting the carriage but she shouldn't need a carriage if she's being taken care of well. She could still walk well. She is my emotional support dog. She is my baby. Please, she brings me so much joy. (July 18, 2024 tr at 40, lines 9-19.)

I love my dogs. And I will take wonderful care of them if you hopefully decide to return them to me (July 5, 2024 tr at 19, lines 2-3).

Several of Plaintiff's acquaintances also provided letters in support, praising her care for the dogs and expressing confidence in her love for animals (see plaintiff's exhibit 8). A friend mentioned that Plaintiff "took wonderful care of her dogs," while another felt that the loss of the dogs has been a source of distress for Plaintiff and that getting the dogs back is important to restore her joy in life (see id.). Notably, Turhan Moody, LMHC, who worked with Plaintiff in the Bronx II Intense Medical Treatment Program, described Plaintiff's love and dedication to her pets as unquestionable (see July 18, 2024 tr at 54-56; Plaintiff's exhibit J). Plaintiff also submitted a letter from a member of her health team recommending the assistance of emotional support animals to help manage her anxiety and depression (see July 18, 2024 tr at 54-56; plaintiff's exhibit J).

Defendant maintained that she provided daily care for the dogs for the times when Plaintiff was unable to do so either due to hospitalization, health crises, or other reasons (see July 5, 2024 tr at 6, line 1; 12, lines 13-15; 14, line 24, through 15, line 8; 19, line 19 through 20, line 2; 23, lines 11-18; July 12, 2024 tr at 30, lines 22-23; 37, lines 3-5).^[7]

Photos of Mary Alice and Henry playing with other neighborhood dogs as well as photos of them lying beside Defendant's cats suggest the dogs are well-adjusted in her care and comfortable in their current environment (see defendant's exhibits G11,^[8] G42)^[9]: https://nycourts.gov/reporter/webdocs/ConnollyvNina_Image2.pdf

Neighborhood residents and shopkeepers enjoy holding or being with Henry (see defendant's exhibits G44, G7, G43),^[10] a product of Defendant's providing Henry with an active lifestyle: https://nycourts.gov/reporter/webdocs/ConnollyvNina_Image3.pdf

The Court credits the testimony of Defendant concerning the circumstances under which the middle photo above was taken and notes how keeping Henry in the local community benefits others who might not otherwise be exposed to human-canine interaction, thus fostering the universal precept of showing kindness to animals:

I live in Williamsburg with a lot of Hasidic Jews, and the children don't—usually are afraid of dogs. But my neighbor is one little boy who's very persistent that I let him pet. And I was like, as long as you're not going to get in trouble from your parents, sure, you could pet. He was very excited to pet Henry and hold him. So I thought snapping pictures, thought it was really cute and heartwarming. (July 18, 2024 tr at 14, line 24, through 15, line 6.)^[11]

Additionally, and contrary to Plaintiff's belief that the dogs are fearful of and therefore should not be around large dogs (see July 12, 2024 tr at 23, lines 1-2; 31, lines 13-14), the photos depict Henry comfortably socializing and playing with other canines at the park — even standing on top of a large one (see id. at 35, lines 10-11; defendant's exhibits F1, F2, F3, F4, G19, G23, G24, G25, G33, G38).^[12] Mary Alice is also depicted as interacting with other dogs (see defendant's exhibits F1, F2, F3, F4, G18, G30, G33, G38). Socialization is as important for domesticated animals as it is for humans. One can readily observe from the photographic evidence that Mary Alice and Henry are afforded more of an opportunity to socialize and play with other dogs while under Defendant's care than they probably would be if they were sent back to Plaintiff:^[13] https://nycourts.gov/reporter/webdocs/ConnollyvNina_Image4.pdf

Plaintiff's assertion that Defendant is engaging in animal cruelty by taking Mary Alice to the dog park every day (see July 5, 2024 tr an 20, lines 19-24) is belied by the photographic evidence.

Defendant further established that she purchased winter clothes for the dogs (see id. at 8, lines 14-21; defendant's exhibits F5, G12, 13, 15) and transports them in a stroller as a precaution to protect from exacerbating Mary Alice's bowlegged condition (see July 18, 2024 tr at 26, lines 21-24; defendant's exhibit I).

It is apparent that both parties have time to spend with Mary Alice and Henry, although the Court is concerned with the fact that there have been lapses when Plaintiff was unable to care for them, which necessitated Defendant's services. Additionally, Plaintiff's trek out to Long Beach from Manhattan on the Long Island Rail Road with Henry and Mary Alice, about whom Plaintiff repeatedly expressed concern regarding her eye and orthopedic conditions, only to fall asleep on the beach without securing the dogs must be recognized as irresponsible behavior. This exposed them to unnecessary risks, as proven by Henry either wandering off or being dognapped when Plaintiff's phone was stolen.

During the hearings, Plaintiff repeatedly characterized Defendant in a pejorative manner, at one point claiming, "She's a violent, hateful individual" (July 18, 2024 tr at 6, line 7). "She's a violent person, she's an angry person" (id. at 6, lines 14-15). The Court finds no basis for these accusations. Additional charges that Defendant was "cruel to animals" (see July 18, 2024 tr at 28, line 15) is belied by the fact that various people have entrusted their pets to Defendant to walk, babysit, and otherwise care for them.

The Court acknowledges Plaintiff's emotional reliance on the dogs, particularly given her health condition and the distress she will incur should the dogs not be returned.^[14] However, the stability afforded the dogs in the course of Defendant's caregiving and the consistent positive experiences the dogs have had under her care tip this factor in her favor. Defendant's experience as a professional pet caregiver, dog walker, and trainer (on and off for 20 years) as well as her ability to provide emotional support and opportunities for Mary Alice and Henry to socialize and exercise regularly only speaks further to her stronger claim as the more superior caregiver.

IV. Health and Medical Needs

Mary Alice's health is a point of contention between the parties, particularly regarding her cherry eye condition, as shown in the photo at right (defendant's exhibit G13). Plaintiff stressed that Mary Alice's cherry eye is chronic and requires daily treatments, including Refresh eye drops and Optix Care ointment, which she diligently administered (see July 12, 2024 tr at 42, lines 16-17). Markedly, Defendant alleged that Plaintiff never notified her of or provided instructions for these treatments, so she took the initiative to administer a home remedy, castor oil (see July 18, 2024 tr at 45, lines 10-14). Defendant further noted that she uses a dog stroller to prevent Mary Alice from overexerting herself on walks and provides CBD biscuits to alleviate joint pain (see id. at 24, lines 6-23; 26, lines 21-24).^[15] https://nycourts.gov/reporter/webdocs/ConnollyvNina_Image5.pdf

Although the parties have differing approaches to medical care, Defendant's handling of Mary Alice's condition has not led to any documented deterioration in the dog's health. The differences in their caregiving methods — such as choice of food and treatments — reflect personal preferences, not a lack of proper care. Plaintiff admitted that surgery is no longer an option for Mary Alice due to her old age and weak heart, making it clear that minimizing her discomfort is a logical course of action^[16] (see id. at 44, lines 1-6). Hence, what makes the difference is Plaintiff's heavy reliance on Defendant to care for the dogs, especially during hospitalizations, which raises concerns about Plaintiff's long-term ability to provide consistent medical care.^[17]

V. Living Environment

Defendant's living situation provides a stable and suitable environment for the dogs. Her home offers ample space for roaming, playing, and interacting with Defendant's other pets, as depicted in photos of the dogs lounging comfortably with Defendant's cats (see defendant's exhibits G11, G42). She also emphasized that while in her care, the dogs have received regular exercise at a nearby park, in contrast to Plaintiffs alleged failure to regularly take the dogs out during the day (see July 5, 2024 tr at 25, line 21, through 26, line 9; July 18, 2024 tr at 10, lines 4). Plaintiff claimed that she did exercise them (see July 5, 2024 tr at 26, lines 17-18; July 12, 2024 tr at 32, lines 4-6) and complained about them being over-exercised (see id. at 17, lines 6-8 ["From the condition of my animals when I picked them up from when they were with her, they were very, very exhausted all the time."]; July 12, 2024 tr at 21, line 17 ["She is taxing them, their energy."]; 22, lines 9-10 ["(Mary Alice) needs to rest, not going to the dog runs."]; 34, line 3 ["S]he taxes them. She overdoes their energy."]). Perusing the photos submitted by Defendant, however, the dogs appear content (see Defendant's exhibits F, G).

The Court acknowledges Plaintiff's testimony in response to Defendant's regarding the dogs being taken out side, which included the following:

Yes, I do the same. I take them out twice a day. They play with each other and they — there's a testimonial letter. They play with — Mary Alice doesn't play with other dogs. She can sniff a dog and, you know, be friendly on the street, but she doesn't — her eyes are too tender. They get recreation with me. They have a wonderful life with me.

I'm grateful to you for not having Miss Nina bring them to court. It would have stressed them, but you would have seen them run to me. They're afraid of her.

(July 18, 2024 tr at 42, line 24, through 43, line 9.)

Plaintiff's living conditions, however, raise concerns. She has a small studio (see July 5, 2204 tr at 22, line 9). Defendant testified that during a visit to Plaintiff's home she observed unsanitary conditions with the floor covered in blankets with urine and feces (see id. at 25, lines 20-21; July 18, 2024 tr at 10, lines 1-5). After the October 2024 incident in Long Beach, "[Defendant] had to give them two baths when [she] brought them home. They were disgusting" (id. at 27, lines 20-21). Additionally, Plaintiff's repeated hospitalizations resulting in the dogs being taken to shelters as well as Defendant's care for the dogs for sometimes up to 56 days at a time raises serious concerns about Plaintiff's ability to consistently provide a safe and stable home (see July 12, 2024 tr at 37, lines 1-6). Thus, based on the testimony and evidence presented, this factor weighs strongly in favor of Defendant.

Conclusion

In arriving at its determination, the Court has considered the testimony and documents submitted by the parties. To the extent that there was any discrepancy between the testimony of Plaintiff and that of Defendant, the Court resolves it in favor of Defendant. Plaintiff's lack of transparency regarding the times and under what circumstances Mary Alice and Henry had been taken in by Defendant undermined Plaintiff's credibility. Answering "No" to the question, "Are there periods of time that you spend on the beach or outside of your apartment?" (July 5, 2024 tr at 28, lines 1-3) was not really accurate, considering Plaintiff's hospitalizations. The Court also feels that Plaintiff could have been more forthcoming concerning the trip to Long Beach: why she toted the dogs out there instead of boarding them with Defendant, whose services she had used previously; why she did not go straight to her destination in Rockville Centre, considering that the dogs were with her; and why she took a chance of something happening to the dogs if she fell asleep. Further, Plaintiff did not satisfy the Court that her apartment was not as described by Defendant: unsanitary, with the dogs lying in urine and feces.

Defendant demonstrated a stronger ability to provide consistent care, immediate financial support, a stable living environment, and permanent, continuous companionship. That Mary Alice and Henry have enjoyed socializing with other dogs (and even with their fellow cat residents) and humans while under Defendant's care is a very strong consideration. Defendant's bond with the dogs, reinforced by her professional experience with animals, further supports the conclusion that it is in the best interests of Mary Alice and Henry to remain in her custody. We are approaching the one-year anniversary of the October 14, 2023 incident at Long Beach. Continuity is important is a pet's life (see Raymond 264 AD2d at 341 [cat to remain where he lived, prospered, loved and was loved for four years]). Having resided with Defendant for a year straight by now, it would be cruel to uproot the dogs at this point. Although letters in support praised Plaintiff's devotion and care given to her pets, in light of Plaintiff's past absences, there is reasonable concern about the dogs' future well-being should they be sent back to her, and this Court will not subject Mary Alice and Henry to a filthy, urine- and feces-laden household.

Dogs are now treated as members of the family under modern, enlightened jurisprudence. Nudged by legislative advances regarding the treatment of pets, the status of dogs under the common law has evolved. They, no less than humans, deserve a safe, stable, stress-free home environment where they will not be subjected to being uprooted periodically. Defendant has and will continue to provide such an environment, in this Court's view. Plaintiff's ability to provide it is questionable. While the Court sympathizes with Plaintiff, who predictably will sustain an emotional loss from being cut off permanently from Mary Alice and Henry, said impact must be subordinated to the best interests of the dogs, especially since the law calls for the application of the "best for all concerned" standard (see id. [emphasis added]). In this case before the Court, Plaintiff's interests are outweighed by those of Mary Alice and Henry. The dogs will be well cared for by Defendant. It is in Mary Alice's and Henry's best interests that they remain in the care of Defendant.

The Court declines to consider separating the dogs as it may cause them distress after living together for so long. Shared custody or visitation is also not considered by the Court due to the hostility observed between the parties, principally by Plaintiff; this would inure to the detriment of the dogs.

Accordingly, IT IS HEREBY DECLARED, ORDERED and ADJUDGED that Plaintiff's motion for summary judgment is DENIED; Plaintiff's complaint (in the form of supporting papers) is dismissed; custody of Mary Alice and Henry, depicted hereinafter (defendant's exhibit G6), is awarded to Defendant; and, upon presentation of a copy of this Decision, Order, and Judgment, any governmental agency recording Mary Alice and Henry as being Plaintiff's dogs shall amend their records to reflect that Defendant is their legal guardian. https://nycourts.gov/reporter/webdocs/ConnollyvNina_Image6.pdf

[1] A puggle is a mix of a pug and a beagle (see Puggle, Wikipedia, available at https://en.wikipedia.org/wiki/Puggle [last accessed Oct. 2, 2024]).

[2] The photo (defendant's exhibit F10), taken by Defendant, depicts Mary Alice and Henry at Plaintiff's home in Brooklyn. Defendant testified: "All over the floor was covered in blankets, which is why I didn't want to stay in with them. She didn't walk the dogs. All the surfaces were just covered in urine." (July 18, 2024 tr at 10, lines 3-5.)

[3] Defendant submitted numerous photographs into evidence. Plaintiff testified that she had no photos of the dogs — that the moving company lost them when she moved from Brooklyn to Manhattan and that she lost the ones on her phone when it was stolen while sleeping on the beach at Long Beach (see July 12, 2024 tr at 19, lines 7-10; 44, lines 21-25).

[4] The Court notes the difficulties and complexities faced by the Kings County Supreme Court Help Center in assisting pro se litigants in preparation for court appearances. However, the system could be streamlined by providing unrepresented plaintiffs with a description of how to commence litigation with the appropriate papers. This Court emphasizes the importance of qualified representation and the need for litigants to be properly apprised of the procedural and substantive aspects of the law.

[5] The Court was unable to locate a written response from Defendant to Plaintiff's initiating papers. The Court deems the exhibits submitted by Defendant at the hearing to constitute answering papers. This is consonant with the notion that "courts will routinely afford pro se litigants . . . some latitude" (Mirzoeff v. Nagar, 52 AD3d 789, 789 [2d Dept 2008]); see Tracy v. Freshwater, 623 F3d 90, 101-103 [2d Cir 2010] [discussion regarding solicitude accorded pro se litigants in federal courts]). Procedural formalities should be relaxed for disputant pro se parties in order to bring about a resolution to their legal quarrel. It is also noted that while Plaintiff raised pro forma objections to evidence and testimony from Defendant, she did not identify any particular grounds rooted in the rules of evidence or other binding protocols. Both parties acquiesced to the manner in which the Court conducted the three-day fact-finding hearing, i.e., taking testimony, receiving exhibits, and hearing argument. The Court recommends that the legislature add a provision to the CPLR to enable pro se litigants to have disputes resolved in the courts without the attendant need to comply with the plethora of litigation mandates more relevant to actions between attorney-represented parties. While this process might resemble arbitration, it is noted that many pro se parties desire to have their disputes resolved by a judge. There should be a process for a court to adjudicate a dispute between pro se parties who, like Plaintiff, "don't know what the rules of evidence means" (July 18, 2024 at 10, lines 18-19).

[6] Parties may wait as long as two years for their case to go to trial due to discovery haggling and full trial calendars.

[7] Plaintiff testified: "The only reason I kept going back to her was because I really didn't have anyone else. I have some difficult family problems, and I have no one to take care of [them]" (July 5, 2024 tr at 14, lines 23-25).

[8] Defendant's exhibit G was a compendium of photographs. Each photo was individually marked with a sequential number after the letter G.

[9] Contrary to Plaintiff's protestations about the dogs living with cats (see July 5, 2024 tr at 23, lines 5-10 ["Mary Alice and Henry are terrified of cats. . . ."]; id. at 25, lines 9-12 ["Please give them back to me. They're with the cats. Please give them back to me, your Honor. They're with the cats."]), these photos confirm Defendant's testimony that her cats and the dogs get along together. The photos depict Chip, Defendant's overweight cat, on the bed with Mary Alice and Henry. The only problem the Court observes with this situation is that Chip needs to go on a diet.

[10] Neighborhood folks are fans of Henry, according to Defendant (see July 18, 2024 tr at 23, line 25, through 24, line 2; 24, line 25, through 25, line 4). The Court doubts that Henry would be exposed to the same type of human interaction in Plaintiff's care.

[11] Since he is a minor, the child's face has been blurred by the Court to preserve his privacy.

[12] Quite evidently, under Defendant's aegis, Henry has flowered into a social butterfly.

[13] Depicted clockwise on page 8 from the top left are Mary Alice with a friend, Mugsy (see July 18, 2024 tr at 17, lines 1-2; defendant's exhibit G18); Henry with other dogs at the dog park, the black one being Sting and the one with the red coat being Cocoa (see July 18, 2024 tr at 19, line 24, through 20, line 4; defendant's exhibit G24); Mary Alice and Henry with Ruby (see July 18, 2024 tr at 21, lines 21-23; defendant's exhibit G30); Henry standing on top of Bambi, "a German Shepherd/Rhodesian Ridgeback mix. She's a very large dog. . . . Henry is not afraid to jump on top of large dogs, play with them. He has a great time," while Sing, another dog, looks on (July 18, 2024 tr at 17, lines 11-23; see defendant's exhibit G19); and Daisy, whom Henry has a crush on (see July 18, 2024 tr at 19, lines 7-8). "That's them walking by the water. That's when I was training him to be . . . off leash, not go too far from me. That was off training with Daisy. She'll run and catch him if he goes off," testified Defendant (Id. at 19, lines 8-14; see defendant's exhibit G23).

[14] The Court takes the mental health of its employees, attorneys, and pro se litigants seriously and does not seek to disclose more information than necessary about anyone's tribulations. However, it should be noted that although Plaintiff displayed erratic and concerning behavior during the hearings in addition to being heard casting threats in frenzied voicemails, such was not considered in this decision as neither implicated Plaintiff's ability to care for the dogs.

[15] Plaintiff took umbrage at Mary Alice being given CBD, accusing Defendant of attempting to kill the dog (see July 18, 2024 tr at 26, lines 4-9). The amount was miniscule and helped Mary Alice keep calm, according to Defendant; she said it also helps with joint pain (see id. at 24, lines 6-23). There is support for its usage in treating osteoarthritis in dogs (see CBD: What you need to know about its uses and efficacy, Cornell Richard P. Riney Canine Health Center, available at https://www.vet.cornell.edu/departments-centers-and-institutes/riney-canine-health-center/canine-health-information/cbd-what-you-need-know-about-its-uses-and-efficacy [last accessed Oct. 2, 2024]). Therefore, this Court draws no adverse inference from Defendant's providing CBD biscuits to Mary Alice.

[16] The Court is not an expert in veterinary care and will not opine on the best treatment for Mary Alice. However, focusing on maintaining comfort over aggressive treatments aligns with the needs of an elderly pet.

[17] Plaintiff herself testified, "I really didn't have anyone else [to care for the dogs]. I have some difficult family problems, and I have no one to take care of —" (July 5, 2024 tr at 16, lines 23-24). The Court is concerned that were the dogs awarded to Plaintiff and she no longer used Defendant's services during hospital stays, nobody else would be available to care for the dogs and they would be taken to the pound and perhaps euthanized — especially considering that Mary Alice presents with obvious health issues such as her eye and orthopedic conditions."