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."

CHILD SUPPORT - WHEN BOTH PARENTS HAVE EQUAL PARENTING TIME

Smisek v. DeSantis, 209 AD 3d 142 - NY: Appellate Div., 2nd Dept. 2022:

"We conclude, to the contrary, that the court-ordered custody arrangement in this case splits the parents' physical custody of the children in such a manner that "neither can be said to have physical custody of the children for a majority of the time" (Baraby v Baraby, 250 AD2d 201, 204 [1998]). In such circumstances, the parent having the higher income and thus bearing the greater pro rata share of the child support obligation, here, allegedly, the father, is deemed the noncustodial parent for child support purposes (see Matter of Conway v Gartmond, 144 AD3d 795 [2016]; Baraby v Baraby, 250 AD2d 144*144 at 204)."

CHILD CUSTODY - WHEN BOTH PARENTS ARE AN ISSUE

MATTER OF BENJAMIN v. v. SHANTIKA W., 2022 NY Slip Op 4774 - NY: Appellate Div., 3rd Dept. 2022:

"Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the parents of two daughters (born in 2010 and 2012). In early 2017, the mother and the children relocated from Ulster County to Bethlehem, Pennsylvania without the father's consent, prompting the father to file a petition seeking an initial determination on the issues of custody and parenting time. In an order entered in July 2017 upon the parties' consent, the parents were awarded joint legal custody of the children, with primary physical custody to the mother and parenting time to the father every other weekend from Friday at 8:30 p.m. through Sunday at 5:30 p.m., as well as any additional time upon which the parents could agree. In September 2019, based upon concerns over the mother's alcohol abuse, the father commenced this Family Ct Act article 6 modification proceeding seeking sole legal and primary physical custody of the children. In July 2020, while they were in the father's care for an extended period of time over the summer, the children exhibited concerning behavior, which resulted in the father amending his petition^[1] and moving, by order to show cause, for emergency relief. Given the nature of the father's allegations, Family Court conducted an emergency virtual hearing, after which it temporarily awarded the father sole legal and primary physical custody of the children and provided the mother with four hours of weekly parenting time in New York. Upon receiving temporary full custody, the father voluntarily engaged in preventative services through the Ulster County Department of Social Services, enrolled the children in mental health counseling and began a parenting class.

In September 2021, following a lengthy, virtual fact-finding hearing that concluded in June 2021, Family Court awarded the mother sole legal and primary physical custody of the children, but put numerous conditions in place, including that the mother continue the children in counseling, ensure that the children are not exposed to any acts of domestic violence, avoid intoxication "at any time that she is caring for [the] children" and "require that her local [s]ocial [s]ervices office [in Pennsylvania] open a preventative case for [the] children." As for the father, Family Court granted him six hours of biweekly, supervised parenting time with the children, as well as "access to all of the children's medical, educational records and access to any professionals providing the children with medical, educational, or counseling services." Family Court directed that the father shall pick the children up at the mother's home in Pennsylvania and return the children to the mother's home at the end of his parenting time. The father appeals,^[2] arguing that Family Court's determination is not supported by a sound and substantial basis in the record.^[3]

The parties do not dispute that there has been a change in circumstances since entry of the July 2017 order and, thus, we focus our inquiry on whether Family Court's custody and parenting time determinations serve the best interests of the children (see Matter of Christie BB. v Isaiah CC., 194 AD3d 1130, 1131 [2021]; Matter of Clayton J. v Kay-Lyne K., 185 AD3d 1243, 1244 [2020]). In determining the children's best interests, Family Court must consider, among other factors, "the quality of the parents' respective home environments, the need for stability in the children's lives, each parent's willingness to promote a positive relationship between the children and the other parent and each parent's past performance, relative fitness and ability to provide for the children's intellectual and emotional development and overall well-being" (Matter of Jessica HH. v Sean HH., 196 AD3d 750, 753 [2021] [internal quotation marks, brackets and citations omitted]; see Eschbach v Eschbach, 56 NY2d 167, 171 [1982]). We accord "great deference to Family Court's factual findings and credibility determinations, which will not be disturbed if they have a sound and substantial basis in the record" (Matter of Richard GG. v M. Carolyn GG., 169 AD3d 1169, 1171 [2019]; see Matter of Charity K. v Sultani L., 202 AD3d 1346, 1347-1348 [2022]).

This case presents one of those difficult instances in which Family Court was "faced with the most imperfect of choices" in determining which custodial arrangement served the children's best interests (Hanna v Hanna, 267 AD2d 903, 904 [1999], lv dismissed 94 NY2d 943 [2000]). To start, the parents' palpable animosity toward one another rendered an award of joint legal custody infeasible (see Matter of Jennifer D. v Jeremy E., 172 AD3d 1556, 1557 [2019]; Matter of Grant v Grant, 47 AD3d 1027, 1028 [2008]). Additionally, the evidence credited by Family Court established that there were genuine concerns regarding each parent (see Matter of Gary J. v Colleen L., 288 AD2d 720, 721 [2001]). Indeed, the evidence demonstrated that, among other things, the mother struggled with issues of alcohol abuse, failed to acknowledge or address the children's sexualized behavior and had a history of violating court orders. As for the father, Family Court credited testimony that, more than 30 years ago, during his teenage years, the father repeatedly engaged in sexual acts with his niece when she was under the age of 10.

Notwithstanding the mother's issues, the evidence demonstrated that the mother has been the children's primary caregiver and that she fiercely loves her children. Additionally, as set forth in a letter from a protective services caseworker in Northampton County, Pennsylvania, where the mother resides, the mother's home was clean and did not present any apparent safety concerns. Furthermore, the children have relatives in Pennsylvania , including their maternal half sibling and maternal grandmother, who live nearby and have provided a supportive environment for the children. Finally, although Family Court did not conduct a Lincoln hearing, various witnesses testified to the children's desire to live with the mother.^[4] Deferring to Family Court's credibility determinations, given the foregoing evidence, there is a sound and substantial basis in the record to support Family Court's determination that an award of sole legal and primary physical custody to the mother was in the best interests of the children (see Matter of Frize v Frize, 266 AD2d 753, 755 [1999]).

We, however, reach an opposite conclusion with respect to Family Court's determination to limit the father to six hours of supervised parenting time in Pennsylvania every other week. In so concluding, we emphasize that "[t]he best interests of the children generally lie with a healthy, meaningful relationship with both parents" (Matter of Williams v Patinka, 144 AD3d 1432, 1433 [2016]; see Matter of Spoor v Carney, 149 AD3d 1209, 1211 [2017]) and that expanded parenting time is generally favored, unless there is proof that such parenting time would be inimical to the welfare of the children (see Matter of Beeken v Fredenburg, 145 AD3d 1394, 1396 [2016]; Matter of Fish v Fish, 112 AD3d 1161, 1162-1163 [2013]).

Here, Family Court's determination to limit the father's parenting time was based entirely on the sexual abuse allegations made against the father by his niece, which occurred nearly 30 years ago. However, there was no evidence establishing that the father had any inappropriate sexual contact with either of the children (see Matter of Johnson v Johnson, 13 AD3d 678, 678-679 [2004]). Nor was there any evidence that the father had engaged in or been accused of engaging in sexual misconduct toward the children's half siblings, both of whom had previously lived with the father for a period of time.

Additionally, none of the parties advocated for supervised parenting time to the father or otherwise opposed a schedule of expanded parenting time (see generally Matter of Beeken v Fredenburg, 145 AD3d at 1397). Indeed, although the mother introduced evidence of the prior sex abuse allegations during her case-in-chief, she argued during summation that Family Court should keep in place the parenting time provisions of the prior July 2017 consent order, which afforded the father parenting time every other weekend from Friday at 8:30 p.m. through Sunday at 5:30 p.m. and at such other times as the parties could agree (see Matter of Carter v James, 4 AD3d 640, 641 [2004]). The record established that the mother knew of the sexual abuse allegations against the father prior to agreeing to the July 2017 consent order. The attorney for the children in Family Court argued for an award of primary physical custody to the father and supervised parenting time to the mother, arguing that there were concerns about the mother's ability to parent the children and that the children were doing well in the father's care. Interestingly, despite ultimately concluding that the father's parenting time with the children must be supervised, Family Court left the children in the father's unsupervised care over the summer of 2021 — that is, from the conclusion of the fact-finding hearing in June 2021 through the time Family Court entered an order on its decision in September 2021.^[5]

Further, the record contains evidence of the father's demonstrated ability to provide for the children's well-being. As established by the evidence, after the children exhibited concerning behavior, the father took overt and appropriate steps to address such behavior by, among other things, engaging in preventative services with the Ulster County Department of Social Services, enrolling the children in counseling and establishing boundaries with the children's online activity. Child protective caseworkers testified on the father's behalf and stated that they did not have any concerns regarding the father.

Considering all of the foregoing, we find that the record lacks a sound and substantial basis to support Family Court's determination to provide the father with only six hours of biweekly, supervised parenting time (cf. Matter of Frize v Frize, 266 AD2d at 757; compare Matter of Alan U. v Mandy V., 146 AD3d 1186, 1188 [2017]; Matter of Susan GG. v James HH., 244 AD2d 731, 734 [1997]). We therefore modify Family Court's order by reversing so much thereof as addressed the father's parenting time. Although we are empowered to independently review the record and make determinations regarding parenting time (see generally Matter of Eldad LL. v Dannai MM., 155 AD3d 1336, 1343 [2017]), under the circumstances of this case, we find that the matter must be remitted to Family Court to, upon further proceedings,^[6] structure a meaningful parenting time schedule in the best interests of the children (see Matter of Jill Q. v James R., 185 AD3d 1106, 1110 [2020]). In so remitting, we encourage Family Court to consider the type of parenting time warranted by the record evidence (e.g., therapeutic visitation, supervised parenting time, unsupervised parenting time, etc.), the amount, duration and location of such parenting time (e.g., a graduated schedule, overnight parenting time in New York, etc.) and any other provisions that would develop and/or promote a healthy and meaningful relationship between the father and the children (e.g., reasonable phone/video contact, written communication, etc.).

Garry, P.J., Egan Jr., Aarons and McShan, JJ., concur.

ORDERED that the order is modified, on the law, without costs, by reversing so much thereof as provided for petitioner's parenting time; matter remitted to the Family Court of Ulster County for further proceedings not inconsistent with this Court's decision; and, as so modified, affirmed.

[1] The father had previously amended his petition in January 2020.

[2] The father's notice of appeal purports to appeal from an "order" entered on September 2, 2021. However, Family Court's decision, not order, was entered on that date. An order upon the decision was ultimately entered on September 27, 2021. Inasmuch as an appeal does not lie from a decision (see CPLR 5512 [a]; Family Ct Act § 1112 [a]), we will, in an exercise of our discretion, treat the notice of appeal as validly bringing an appeal from the September 27, 2021 order (see CPLR 5520 [c]; Matter of Angela F. v Gail WW., 146 AD3d 1248, 1250 n 2 [2017]).

[3] Unlike the attorney for the children in Family Court, who argued for an award of primary physical custody to the father and supervised parenting time to the mother, the attorney for the children on appeal urges this Court to affirm Family Court's determination to award the mother sole legal and primary physical custody, with supervised parenting time to the father.

[4] Although none of the attorneys, including the attorney for the children, requested a Lincoln hearing and although Family Court is not mandated to conduct one (see Matter of Daniel XX. v Heather WW., 180 AD3d 1166, 1168 [2020]; Matter of Jessica B. v Robert B., 104 AD3d 1077, 1078 [2013]), the best practice here would have been for Family Court to conduct a Lincoln hearing.

[5] Moreover, following testimony from the father's niece in February 2021 regarding the allegations of past sexual abuse, Family Court did not alter its temporary order awarding the father sole legal and primary physical custody of the children.

[6] Such further proceedings could include, among other things, Lincoln hearings or additional proof from a qualified professional relating to the children's well-being."

COVID AND JOINT CUSTODY ISSUES REQUIRE COURT INTERVENTION

S.M. v. E.M., Date filed: 2022-06-28, Court: Supreme Court, Nassau, Judge: Acting Justice Stacy D. Bennett, Case Number: xxxxxx/15:

Procedural History The plaintiff, S.M. (hereinafter “mother”) and the defendant, E.M. (hereinafter “father”) were married on October 3, 2010. There are three children born of the marriage, namely, E.M., Jr., born xx-xx-08, I.M., born xxxx- 11, and J.M., xx-xx-12. The mother commenced an action for divorce in 2015 which was thereafter settled via Stipulation of Settlement dated January 27, 2016 which was incorporated into the Judgment of Divorce dated September 2, 2016. The Stipulation of Settlement provided that the parties are to share equally legal and residential custody of the three minor children, with neither party having final decision making authority. Further, the Stipulation of Settlement did not provide for an access schedule.

On October 14, 2021, the father filed an Order to Show Cause (motion sequence #5) seeking to modify the parties’ Judgment of Divorce and provide him with the following relief; (1) an award of sole legal and residential custody of the children, (2) an access schedule to the mother, (3) an award of child support, (4) an order directing the consolidation of the pending Family Court support proceeding, and (5) and order permitting him to have the eldest son (Eric, Jr.) vaccinated with the Covid-19 vaccine. On November 12, 2021, the father filed an emergency Order to Show Cause (motion sequence #6), seeking almost identical relief to motion sequence #5 and after oral arguments on the record, the parties agreed to consolidate the Family Court modification petitions (motion sequence #7 &8) with the within action. The parties requested an immediate hearing on the limited issue of medical decision making.

On February 10, 2022, the parties appeared in Court and placed on the record a stipulated set of facts in an effort to streamline the limited issue hearing. The stipulation provided in relevant part, as follows:
Pursuant to the terms of the parties’ stipulation of settlement, the parties share joint legal and residential custody of the minor children. The stipulation of settlement did not provide the parties with a parenting schedule but only stated that the parties were to have equal time with the children. The defendant, E.M., has received the Covid-19 vaccination. The plaintiff, S.M., has not received a Covid-19 vaccination. The parties have a disagreement with regard to the children receiving the Covid-19 vaccination. The defendant wishes for all three of the children to be vaccinated. The plaintiff does not want the children to receive the Covid-19 vaccination at this time. The children’s treating pediatrician has recommended that all three children receive the Covid 19 vaccination. (Transcript, page 4- 5)

Further, the Court was advised by the father’s counsel that since the limited issue hearing will not address his change of custody application, another hearing must be scheduled to address the remaining relief requested by the father is his application for sole legal custody. Accordingly, at the next conference, the parties will select hearing dates.

The limited issue hearing began on June 8, 2022 and continued on June 10, 2022, and June 13, 2022. On the first day of the hearing, June 8, 2022, the parties entered into a “So Ordered Parenting Agreement” which sets out a parenting schedule and therefore resolved that issue and relief requested in the father’s motions sequence #5 & #6. The Parenting Agreement also provided, at paragraph 9, that the “parties shall notify each other prior to making a non emergency health related appointment.” The mother is represented by 18-b assigned Counsel, Donna McCabe, Esq, the father is represented by Erica Sakol, Esq. and Matthew Weiss, Esq, and the children are represented by Patricia Latzman, Esq. The parties were the only witnesses at trial.

Findings of Fact
The Father
The father was the only witness during his case in chief. He is fully vaccinated and “boosted” and supports having the children who are eligible to be vaccinated. He testified the mother has refused to allow their children to receive the Covid-19 vaccine despite the recommendation of the children’s treating pediatrician. Further, the father testified that the mother never contested having the children immunized and they have always received all required vaccines in order to attend school. In support of his application for medical decision making authority he explained that based upon the mother’s recent conduct and behavior, he sought judicial intervention in both the Supreme Court and the Family Court. Specifically, he described three (3) incidents wherein he contends that the mother made decisions contrary to the children’s best interest. The first was in 2018, wherein he alleged the mother exposed the children to dogs and cigarettes despite her knowledge that they suffer from allergies. As a result, he filed a motion in the Family Court which resulted in a court order directing the mother not to allow the children to be exposed to pets, cigarettes and vaping. The second incident was in 2020 when the maternal grandmother mother was visiting from Arizona. The father argued that despite the fact that Arizona was classified as a “hot state” the mother did not seek to quarantine her mother prior to having her visit with the children. Although on cross examination, he admitted that the grandmother did in fact quarantine at a friend’s house for 14 days and that was “the proper action to take.” Finally, the father alleged that in 2020, when the mother had parenting time with the children, she developed Covid symptoms, fell asleep for four hours leaving the children unsupervised, then finally called the father to pick them up. She later came to the father’s home on four different occasions demanding to take the children, acting irrational, banging on the door and trying to push her way inside his home. He explained that he did not feel the mother should have parenting time with the children until after the mandatary quarantine period. However, the father conceded on cross examination that the mother’s decision to bring the children to him was in fact “the right thing to do.”

In addition to the three incidents set forth above, the father described an incident in December, 2021 when he and the children were diagnosed with Covid-19, she wanted to take them during her Christmas parenting time and came to his house on December 26th with the police demanding to take the children. He explained that although it was in fact the mother’s scheduled parenting time, he did not allow the children to go with her because he wanted to keep them at his home, he didn’t want the mother to get Covid-19 and he “was concerned about her safety. As another recent example of what he referred to as the mother’s “poor decision making,” was when the mother took the children to the Mets baseball game on her birthday in May, despite the fact that the mother knew the child I.M. was not feeling well and kept her home from school.

The father further testified that the mother took the eldest child to Dr. Palevsky, a holistic doctor in Northport for a second opinion regarding vaccination alternatives. Although he objected, and even cancelled the appointment, the mother took the child (E.M. Jr.) to the doctor. The father testified that he would follow the recommendations of the children’s pediatrician and if he were awarded medical decision making authority, he would immediately vaccinate the children who are eligible.

The Mother
The mother testified that she is the parent who routinely takes the children to all medical appointments. She believes she proactively communicates with the father while he tends to isolate and exclude her. She claimed that the father has intentionally left her name off of school notification forms.

The mother testified that the children are “up to date with all mandatory vaccines” and on cross examination by the attorney for the children she further conceded that she followed all of the recommendations and directions of the children’s pediatrician throughout their lives. However, with respect to the Covid-19 vaccine she believes the vaccine is at “its infancy stages” and more research is necessary. She admits to not being vaccinated and opposes the children being vaccinated at this time, despite the recommendations of the children’s pediatrician. She believes, based upon her independent research, that more science and data is required before she can agree to vaccinate her children with the Covid-19 vaccine and she further believes that the adverse reactions from the Covid-19 vaccine “are more harmful than the virus.” She further testified that having had Covid-19, she believes the risks of being vaccinated outweigh the health concerns. The mother did not deny taking the eldest child to a holistic doctor for a second opinion or suggestions related to alternative medicine.
The mother denied most of the testimony of the father and stated that on several occasions the father failed to advise her of health related issues regarding the children. Specifically, the parties’ daughter I.M. needed surgery to repair two breaks in her arm and the father failed to advise her stating that she only learned this when she took the child to the doctor.

With regard to the incidents described by the father, the mother contends that she made decisions in the children’s best interest. She contends that the father is controlling and has prevented her from exercising her scheduled parenting time. With regard to the incident when the children had Covid-19 during her parenting time, she wanted to care for them and wanted them to quarantine in her home however when she attempted to pick them up, the father refused to allow the children to go with her. She explained it was her parenting time, she could care for them and keep them quarantined but the father refused to allow them to leave his home. She testified that his claim to not wanting her to get sick as his reasoning for not allowing her to have her children during her parenting time is disingenuous. She explained that she did attempt to pick them up several times and was upset and frustrated since he refused to allow the children to go with her and therefore deprived her of her Christmas parenting time with her children and did not see them until January 6, 2022. With regard to the incident wherein she had the Covid-19 virus, she explained that once she realized she was sick, she immediately called the father and made arrangements for the children to stay with him. She is asking the court to grant her medical decision making authority.

Conclusions of Law
The parties’ Stipulation and Judgment provides for joint legal custody and therefore joint decision making. However, it is clear that they have differing opinions specifically regarding the Covid-19 vaccine. Therefore, they are each asking the court to be awarded medical decision making authority on behalf of their children.

In lieu of expert medical testimony, the parties stipulated that the children’s treating pediatrician has recommended that all three children receive the Covid-19 vaccination. The father seeks to follow the recommendation of the medical professional. The mother does not.

The paramount concern in making decisions regarding custody is the best interest of the children. Eschbach v. Eschbach, 56 NY2d 167, 56 NY2d 167 (1982). The court will not debate the efficacy of the vaccine but rather what is in the best interest of the children. The children’s pediatrician, selected by both parents over ten years ago endorses and recommends vaccination for the children, as does their counsel.

In response to the COVID-19 pandemic, New York State is “transitioning towards a “new normal; citizens are taking precautions to balance staying safe from Covid-19 and its variants alongside the desire to return to some semblance of regular life”. J.F. v. D.F., 74 Misc. 3d 175 at 181 (2021). “The widespread availability of the Covid-19 vaccines, with their continued, proven efficacy in preventing the spread of the virus and the development of serious symptoms in those who contract it, has resulted in the expectation that one must be vaccinated to participate meaningfully in everyday society”. Id at 181. Therefore “the paramount concern when making a parental access determination is the best interests of the child, under the totality of the circumstances.” Marino v. Marino., 183 A.D3rd 813 at 816 (2020). In C.B. v. D.B., 73 Misc. 3d 702 at 708 (2021), The Court weighed the totality of circumstances of Covid-19 with a child being around her unvaccinated father. The Court granted suspension of the father’s parental access, finding that the father’s willful refusal to receive the Covid-19 vaccine or give a compelling rationale as to why he would not get the vaccine, threatens the child’s health and safety. Id at 705. Whereas the mother “who is fully vaccinated and observant of Covid-19 protocols, not because it somehow benefits her, but because it serves to protect the health, safety, and well-being of the child.” C.B. v. D.B., 73 Misc. 3d 702 at 708.

Similarly, in J.F. v. D.F., 74 Misc. 3d 175 at 183, the Court ordered the child to get the Covid-19 vaccine despite the father’s objection holding that it was in the child’s best interest to participate in the vaccination program. The Court heard testimony from the child’s pediatrician, who “concluded that the child be vaccinated and that she would be best protected from Covid-19 by the vaccine, even though she was only 11 years old.” Id at 178. Despite the argument of the vaccine being in an “infancy stage,” the Court held “the imminent risk of contracting the disease is too high and the consequences of acquiring it potentially too dire.” Id at 183. Further, the court opined that “the danger extends beyond this child and includes a risk of serious infection to any person with whom the child comes into contact, including plaintiff, the child’s classmates, and their families.” C.B. v. D.B., 73 Misc. 3d 702 at 705.
This Court is mindful of the allegations made by both parties and declines to award full medical decision making authority to either party. However, based on the testimony, evidence and articulated medical opinion of the children’s long-time pediatrician, the father is awarded medical decision making authority solely and specifically regarding vaccinations.

All other applications, motions or requests not specifically addressed herein regarding medical decision making are hereby denied. The parties are directed to appear on July 28, 2022 at 9:30 am for a conference to select hearing dates regarding the remaining issues in the father’s application for change of custody.

This Constitutes the Decision and Order of the Court.
Dated: June 28, 2022

WHEN RELIGION AND LIFESTYLE CONFLICT IN DIVORCE

Weichman v. Weichman, 2021 NY Slip Op 6211 - NY: Appellate Div., 2nd Dept. 2021:

"DECISION & ORDER

ORDERED that the interlocutory judgment is modified, on the law, by deleting the provision thereof directing that the plaintiff, during her periods of parental access, "shall not take the child to a place or expose the child to an activity that violates rules, practices, traditions and culture of the child's Orthodox Jewish Chasidic Faith"; as so modified, the interlocutory judgment is affirmed insofar as appealed from, without costs or disbursements.

The parties were married in 2005. There is one child of the marriage, born in 2006. The child was raised in accordance with the parties' Orthodox Jewish Chasidic faith and attended an Orthodox Chasidic yeshiva from the age of two. In March 2015, the plaintiff commenced this action for a divorce and ancillary relief. The plaintiff identifies as a member of the LGBTQ community, and considers herself an Orthodox Jew. Following a trial on the issues of custody and parental access, the Supreme Court issued a decision awarding the defendant sole custody of the child, with the plaintiff to have specified periods of parental access. The court imposed certain restrictions on the plaintiff's periods of parental access, including a requirement that: "The [plaintiff] shall not take the child to a place or expose the child to an activity that violates rules, practices, traditions and culture of the child's Orthodox Jewish Chasidic Faith. Thus, the [plaintiff] shall ensure that the child is able to abide by the laws and rules of the Shabbat, Jewish Holidays, Kosher Chasidic and Glatt Kosher food requirement, and the rules of the Mosdos Chasidic Square."

An interlocutory judgment dated February 13, 2020, was issued, incorporating the provisions of the decision after trial. The plaintiff appeals, challenging only the Supreme Court's failure to award her decision-making authority on the issue of the child's education, and the first sentence of the restriction quoted above.

Ordinarily, absent an agreement, the custodial parent has the right to make educational decisions for a child (see Matter of De Luca v De Luca, 202 AD2d 580, 581). Nevertheless, "it may be appropriate, depending upon the particular circumstances of the case, to award some custodial decision-making authority to the noncustodial parent" (Matter of E.D. v D.T., 152 AD3d 583, 584 [internal quotation marks omitted]; see Cohen v Cohen, 177 AD3d 848, 851-852; Chamberlain v Chamberlain, 24 AD3d 589, 591). Here, there was a sound and substantial basis for the Supreme Court's determination to award the defendant decision-making authority on the issue of the child's education (see Matter of E.D. v D.T., 152 AD3d at 584). The child had been enrolled in the same yeshiva since he was two years old, where he was doing well socially and academically, and the plaintiff failed to establish that her desired plan of enrolling the child in a different type of yeshiva or a public school would be in the child's best interests (see Weisberger v Weisberger, 154 AD3d 41, 54).

However, we agree with the plaintiff that the Supreme Court's direction that, during her periods of parental access, she "shall not take the child to a place or expose the child to an activity that violates rules, practices, traditions and culture of the child's Orthodox Jewish Chasidic Faith" must be vacated.

In the absence of a written agreement, the custodial parent may determine the religious training of a child (see Cohen v Cohen, 177 AD3d at 853; Matter of Cook v Rabinowitz, 5 AD3d 594, 594; Matter of De Luca v De Luca, 202 AD2d at 581). Consistent with the children's best interests, courts may properly direct noncustodial parents, during periods of parental access, to respect the children's religious beliefs and practices and make reasonable efforts to ensure the children's compliance with their religious requirements (see Cohen v Cohen, 177 AD3d at 853; Matter of Indig v Indig, 90 AD3d 1050, 1051; Matter of Ervin R. v Phina R., 186 Misc 2d 384, 393 [Fam Ct, Kings County]). However, as this Court explained in Weisberger v Weisberger (154 AD3d at 53), a court oversteps constitutional limitations when it purports to compel a parent to adopt a particular religious lifestyle. "To the contrary, `[i]t is beyond dispute that, at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise'" (id., quoting Lee v Weisman, 505 US 577, 587; see Cohen v Cohen, 182 AD3d 545, 547). A religious upbringing provision "should not, and cannot, be enforced to the extent that it violates a parent's legitimate due process right to express oneself and live freely" (Weisberger v Weisberger, 154 AD3d at 53, citing Obergefell v Hodges, 576 US 644, Lawrence v Texas, 539 US 558, 574, and Planned Parenthood of Southeastern Pa. v Casey, 505 US 833, 851). Thus, where the effect of a religious upbringing provision is to compel a parent to himself or herself practice a religion, rather than merely directing the parent to provide the child with a religious upbringing, the provision must be stricken (see Cohen v Cohen, 182 AD3d at 547; Weisberger v Weisberger, 154 AD3d at 53).

Here, the challenged restriction does not expressly require the plaintiff to herself comply with the rules of the child's Orthodox Jewish Chasidic faith during periods of parental access. Nonetheless, we agree with the plaintiff that the breadth of the provision in forbidding her to "expose" the child to any activities which violate the child's Orthodox Jewish Chasidic faith has the same effect as the provisions this Court struck down in Cohen v Cohen (182 AD3d at 547) and Weisberger v Weisberger (154 AD3d at 53). The only way for the plaintiff to ensure her compliance with the restriction is for her to comply with all religious requirements of the child's faith during her periods of parental access, lest she "expose" the child to activities not in keeping with those religious requirements. The defendant's testimony at the trial supports this conclusion and demonstrates that he expected the plaintiff to "conduct herself in [the child's] presence according to the rules" of the child's faith. The defendant was especially concerned that the child would be exposed to people involved in a "gay lifestyle" and testified that, if the plaintiff became involved in a relationship with or married a woman, he would request that the partner not be present during periods of parental access because same-sex relationships are inconsistent with Chasidic religious principles. Such restrictions on a parent's ability to "express oneself and live freely" go beyond requiring a noncustodial parent to support and enable the child's religious practices, and impermissibly infringe on the noncustodial parent's rights (Weisberger v Weisberger, 154 AD3d at 53).

The plaintiff does not challenge the Supreme Court's direction that, during periods of parental access, she "shall ensure that the child is able to abide by the laws and rules of the Shabbat, Jewish Holidays, Kosher Chasidic and Glatt Kosher food requirement, and the rules of the Mosdos Chasidic Square." That provision effectively addresses the plaintiff's obligation to ensure the child's compliance with his religious requirements during her periods of parental access (see Cohen v Cohen, 177 AD3d at 853). Accordingly, we modify the interlocutory judgment to delete the challenged restriction.

Motion by the respondent to strike stated portions of the appellant's reply brief on an appeal from an interlocutory judgment of the Supreme Court, Kings County, dated February 13, 2020, on the ground that they refer to matter dehors the record. By decision and order on motion of this Court dated June 28, 2021, the motion was held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the argument of the appeal, it is

ORDERED that the motion is denied.

DILLON, J.P., HINDS-RADIX, CHRISTOPHER and ZAYAS, JJ., concur."

CHILD CUSTODY AND COVID - HOME SCHOOL OR PUBLIC SCHOOL

DRD v. JDD, 2021 NY Slip Op 21300 - NY: Supreme Court, Monroe 2021;

"In this matter, the Court must decide, in a contested divorce action, whether to issue a temporary order requiring the children to attend the public schools rather than be home schooled.

The father alleges that the children were enrolled in the public schools for the start of the 2021-2022 school year. The father appeared at the school on the first day and could not find his children. He was told that his wife had informed the District that neither of the children would attend school that year. As it turns out, the mother had informed the school district that she would home school the children and, thus, they did not attend school on the first day and have not since that date. Importantly, the father never agreed to have his wife home school the children and there is no evidence before this Court that the mother notified the father that she was home schooling the children this academic year or consulted with the father before implementing this choice.^[1] After the father learned of the children's absence from school, he brought an order to show cause to require the children to be enrolled immediately in the public schools. The mother filed papers in opposition.

The father has joint custodial rights in his children via a prior family court order. The father acknowledges that his older daughter struggled with remote learning in the prior year. His younger daughter has some health issues — a heart murmur and asthma — but neither ailment would preclude that younger child from attending the public schools. The mother lists no income but food stamps in her statement of net worth and there is no evidence of any employment. There is no evidence that she had a college degree or any experience as a teacher. She offered no evidence of any educational training.

The mother asserts, without any evidence, that mask wearing — required in the public schools — is unhealthy. The mother claims that mandatory vaccinations are against her religious beliefs but she offers no evidence that supports that conclusion. The mother reaches the conclusion that "home schooling offers what a public school cannot." The father opposes the home schooling, arguing that the program utilized by the mother for home schooling "provides shortcuts for parents who do not want to set up actual lesson plans for their home schooled children."

Importantly, the family court order granted the couple joint custody rights, which means that in the absence of parental agreement on home schooling, this Court must decide whether home schooling is in the children's best interests. When faced with this choice, the Court notes the court-appointed attorney for the two young children advocates returning them to the public schools. The younger daughter, in particular, wishes to return to the public schools, a position supported by the AFC. The AFC, in a written analysis forwarded to the Court and counsel, remains concerned that the children have told her that they had no written assignments, testing or required reading as part of the mother's home school requirements. In addition, there is no evidence of any oversight by the school district which approved the home schooling for these children. Given these deficiencies, the father is concerned that his children will fall behind academically.

This Court acknowledges that in the wake of the pandemic in New York, remote education through the internet was necessitated and the issue of "return to school" with attendant masking, social distancing and other requirements caused confusion and concern among parents and students. During the year when in-person public schools were unavailable, many children — and their parents — grew accustomed to learning at home, although the instruction was often broadcast by the school districts and curriculum and evaluation methods were overseen by the local districts. However, the Fall 2021 school year began in this couple's local school district with in-classroom instruction, subject to certain health-related requirements. At this stage of this proceeding, the Court must, in the context of a temporary order, determine, based on the available evidence, whether the children's best interests are served by continued home schooling — over the father's objection — or a return to the public schools — over the mother's objection.

Initially, the New York courts have made it clear that modifying a child's education plan without consultation and approval of a joint custodial parent can be a factor in changing or awarding custody. See Frawley v. Salvatore, 58 AD3d 678 (2d Dept 2009) (parent's decision to withdraw the subject children from school for home schooling as a factor in modifying custody); Matter of Michael B. v. Dolores C., 113 AD3d 517 (1st Dept 2014)(removing a child from school without consulting with the other parent violated joint custodial rights).

New York has a longstanding commitment to quality education for all students. The Education Law requires that children attend upon full-time instruction (Education Law § 3205[1][a]) at a public school or elsewhere (Education Law § 3204[2][I]) but the education must be "at least substantially equivalent to the instruction given to minors of like age and attainments at the public school of the city or district where the minor resides." The Family Court Act also requires parents to provide a child with an adequate education. Family Ct Act § 1012[f][I][A]; see Family Ct Act § 1046[b][I]. Matter of Isaac V. D. L. R. (Maria D. L. R.), 174 AD3d 622 (2d Dept 2019). While home schooling is permitted subject to approval by the local school district, the essential issue in the context of a temporary order in a divorce proceeding is whether the facts of the home schooling in this instance, overseen by this mother, are in the children's best interests. In that regard, the skills of the parent-instructor play a role. See Matter of Blerim M. v. Racquel M., 94 AD3d 562 (21st Dept 2012)(the court held that the mother's surreptitious home-schooling of the children, over the father's objections, despite being completely unqualified to do so was a factor in changing custody). As another court suggested, this Court should be especially attentive to the skills of the parent seeking to home school the children. The Appellate Division in Matter of Sloand v. Sloand, 30 AD3d 784, 786 (3d Dept 2006) noted with respect to a mother seeking to home school her children:

the mother is not able to sufficiently foster the child's intellectual development (citations omitted). Among other things, contrary to recommendations made by the child's teacher and principal, the mother intends to home school the child although she lacks teaching experience, has not had full-time employment since 1993, and has failed to respect the child's educational requirements, such as regular and punctual attendance

Id. See also Piazza v. Piazza, 2002 NY Misc. LEXIS 911 (Fam. Ct. Oswego Cty 2002)(mother seeking to home school never submitted any evidence to indicate the child's home school performance, nor did she present any home school curriculum used to instruct the child and therefore the child's best interests supported continued attendance at public schools).

The need for a competent educator to handle home schooling, even in the early grades, is well documented:

It seems almost axiomatic that — except in cases of exceptionally well-qualified parent-teachers and/or exceptionally able students — the day eventually and inevitably arrives when substantially equivalent home instruction can no longer be provided or maintained. Most parents simply cannot teach, nor can most students effectively teach themselves, advanced English or history, much less the intricacies of algebra, geometry, biology, chemistry, and physics.

In re Adam D., 132 Misc 2d 797 (Fam. Ct. Schoharie Cty 186). A further analysis of home schooling when a parent is not competent to teach is found in Matter of Bottorff v Bottorff, 2018 NY Misc. LEXIS 11094 (Fam. Ct. Oneida Cty 2018), aff'd 177 AD3d 1343 (4th Dept 2019). The Family Court there found:

. . . no proof as to the quality of the education that the mother was provid[ing]. The mother believed the children struggle with crowded spaces and in group settings, yet seemed content on not providing the children with avenues for socialization. The Court finds the earlier the children obtain sustained competent education, treatment and socialization the better; that developmental challenges, such as having difficulty in group settings, will only exasperate and become more pronounced as the children age into teenagers and beyond if not adequately addressed now. Moreover, based on the current dynamics between the parties and the children, the Court finds that allowing the mother to home school the children would excise the father from the children's education and further deteriorate the father's relationship with the children. As a result, the Court finds that it is not in the children's best interest to be home schooled.

Id at 19. The socialization benefits of public schooling have also been recognized. Matter of Wilson v Hendrickson, 88 AD3d 1092 (3d Dept 2011)(when enrolled in a pre-k school program, the child is able to make friends and interact with children her own age as factor supporting engaging in public school opportunities rather than staying at home).

In this matter, the children are young and, from one perspective, the educational requirements may be minor — simple reading, word recognition, arithmetic, phonetics, and introduction to science. But, these early instructional steps are the building blocks for advanced educational attainment and must be mastered to move into more intricate and advanced subject matter. Failure to master the building blocks may inhibit educational success at the higher levels and bred student frustration, distress and failure. Falling academically behind is a risk that children should avoid at all ages and conscientious parents, committed to their children's best interests, should not permit it to happen. In addition, the socialization benefits of public schools — interactions with friends and peers, exposure to other student from different backgrounds — are well-known. Finally, participation in school activities, sports and extracurriculars can be critically important in child development. In the papers before this Court, there is no evidence advanced by the mother that the daughters are obtaining age appropriate schooling or instruction or that the mother has the pedagogical competence to instruct the children. There is no evidence that the children have participated in school activities or extracurriculars or even been given the opportunity to do so. The mother's justifications for avoiding the public schools — that vaccinations are against her religious beliefs and "testing at school is medically inappropriate" — are offered without any evidence. The mother's claims that there are medical challenges for her daughters that might be impacted by attending the public schools lack any evidentiary support as well. Finally, as noted earlier, the father's custodial rights, established in a family court order, were violated when the mother unilaterally decided to home school the children. While she may have invited consultation about the children's schooling in a text to the father before the public schools started, she never indicated that she intended to home school the children, depriving the father of any input on that specific choice.

At this stage in this divorce action, the Court grants a temporary order requiring that the children be immediately enrolled in the appropriate public school, as participation in the public schools is, based on the evidence before this Court, in the children's best interests. The matter of best interests on a permanent basis remains to be decided after a hearing on all the issues raised in this divorce.^[2]

SUBMIT ORDER ON NOTICE NYCRR 202.48

[1] The mother, in her responding papers, offers two text messages sent to the father before school started. In one, dated August 3, 2021 (before school started), she states that there are "serious things to be discussed" regarding school for the children. There is nothing in the text that suggests the children will be home schooled. The mother also attached a series of texts which indicate she sought greater communication with the father which, she contends, never materialized. She sent a text to the father, after school started, and said that the children were being home schooled.

[2] If, at the conclusion of this proceeding, the proof establishes that home schooling would be in the best interests of these children, the Court can restore the home schooling that the mother seeks. In the meantime, the school district can evaluate the children's age and grade-appropriate educational attainment and insure that their skills match the district's and the state's requirements."

CHILD CUSTODY - THE EFFECT OF INCOME DISPARITY AND CHILD PREFERENCES

And note the last paragraph and footnote...IMHO, this is a well written decision, demonstrating the empathy which is a hallmark of Judge Sunshine.

VL v. DL, 2021 NY Slip Op 50502 - King Co. Supreme Court May 19, 2021:

"JEFFREY S. SUNSHINE, J.

This Court must determine if modification of a parenting agreement where parties enjoy joint custody is warranted based upon the clear desires of two teenage children where without a doubt the Defendant's economically superior ability has impacted the children.

The request is bolstered by the remarriage of the Defendant, the change in the Defendant's employment making him and his work from home spouse is more available for the children's needs and desires. The Defendant, supported by the children, is seeking to have residential parenting time changed to two weeks in a row with the Defendant and one week with the Plaintiff.

This dynamic presents the Plaintiff with a predicament. She must work full time to support herself and care for the children, and she does not have the resources of the Defendant and his new spouse to compete with meeting the children's economic and other desires. She cannot provide the children with the luxuries or the time that that other parent. She clearly operated under the assumption that good joint custodial parenting is allowing the other parent to step up to the plate to fill that void, only to find herself facing a calendar and diary allegedly documenting the greater period of time the children have been voluntarily spending with the father. Nor can this Court allow to go unnoticed that the request for a change in custody only comes before the court after the Plaintiff twice seeks enforcement of substantial child support due and owing in the form of a cross motion.

The Court cannot determine based upon the testimony adduced at trial if the Defendant did not pay the child support because he erroneously believed he should not have to because the children were spending more time with him. As opposed to the Plaintiff having not regularly sought the monies that she would waive same. The Plaintiff puts forth the argument that her return to the full time work force and the need to support her and the children' needs is the basis for the claim that Defendant should have more time with the children than the Plaintiff.

The matter was tried before this Court in a hearing conducted virtually due to the present pandemic emergency. On the record on July 2, 2019 this Court denied the Defendant Father's request for sole custody in as much as the parties continued for the most part to cooperate and act in the best interest of their children. The Court did though set the matter down for a hearing on the issues of parenting time given the specific requests of the Attorney for the Child. The Attorney for the Child asserted his clients were in support of the Father's application for expanded parenting time beyond the agreed upon parenting schedule.

The Plaintiff and Defendant were married in April 2003 and the parties have two children D.L. and E.L. Plaintiff commenced an action for divorce in 2011. The parties executed a Stipulation of Settlement in April 2012. According to the Stipulation of Settlement the parties shared joint legal custody and Plaintiff had residential custody. The parties' parenting time schedule was three-and-a-half days each. At the time of the execution of the Stipulation of Settlement, D.L. was eight years old and E.L. was five years old. At the present time, D.L. is seventeen years old and E.L. is thirteen years old.

Plaintiff's counsel called the Plaintiff as a witness to testify during Plaintiff's case on October 30, 2020 and November 18, 2020. Defendant's counsel called the Defendant and Defendant's wife (A.L.) as witnesses to testify during Defendant's case. Defendant testified on August 5, 2020 and September 22, 2020 and Defendant's Wife testified on September 24, 2020. The Attorney for the children did not call any witnesses. There were in camera interviews held with the children separately, virtually due to the pandemic emergency at an agreed upon location.

The Contentions

The Plaintiff asserts that the Defendant's request for a change of parenting time is wrongfully predicated upon a theory that she is not an adequate caretaker for the children and that he has more resources than she does to care for the children. Plaintiff argues and in fact the Defendant did at trial offer testimony regarding, the size of his residence, that his family members live nearby, that the Plaintiff lives nearby, that he is the primary caretaker to the children in regards to doctors and schooling and that the Plaintiff is not involved in the children's lives to the extent he and his wife are.

Plaintiff testified that from the time D.L. was born in 2004, she was a homemaker. After her separation from the Defendant in about 2012, she began a part time job during school hours. In 2015, after being essentially out of the workforce for more than 10 years, she began working full time. At that point, she needed childcare assistance part of the week. Since cheerleading was an activity the children had immediately after school. The Defendant and his family assisted in cheerleading activities. Plaintiff was able to pick the children up after work once her work schedule changed in 2018. Until then, Defendant's enrollment of the children in cheerleading, with her knowledge he coordinated transportation from the activity and Plaintiff welcomed the help without questioning Defendant's motive. She had no objection to either Defendant or someone [Family Members] at his direction picking up the children at 4:00 p.m. from cheerleading and bring them either to her home or his home. On September 15, 2018, Plaintiff started a new job where she had flexibility in her work hours. She thereafter was able to pick up the children on her days from cheerleading. Defendant asserts this was only because she was concerned about Plaintiffs seeking a change in custody.

The Plaintiff steadfastly maintains that she was the primary caretaker of the children from birth and that she was the one who provided the care of them prior to and after the divorce. The Defendant had previously worked in the restaurant pizza business at that time and even after the divorce she continued to be the primary caretaker. It also appeared to the Court that she exercised appropriate judgment and was credible in her assertion that she and the Defendant for the most part had an amenable relationship post-divorce when it came to the children. She lives in a smaller home, and her mother lives with her and the two children. When she initially returned to work full time, she was not able to transport the children to and from extracurricular activities and she welcomed the assistance.

Plaintiff denies that she in any way interfered with the Defendant's ability to have contact with the school as alleged by Defendant and asserted she allowed the children to visit with and stay with the Defendant while she was working. She vehemently denies that the children are not properly taken care of when with her.

The Plaintiff does assert that she cannot compete economically with the Defendant and his present spouse. The Defendant's new spouse works from home, that they have a pool which was very helpful for the children this past summer due to Covid travel restrictions, that she does not have as much room as they do in her home and that she does not have the funds to take the children on a family trip to Hawaii or Cape May, New Jersey like the Defendant did.

There was much testimony about the Defendant wanting to infringe on the Plaintiff's parenting time with the children and take the children to Cape May during her time this past summer and her refusal. The event was complicated by the Defendant unfortunately utilizing one or both children as a messenger in an attempt to convince the Plaintiff to allow them to visit.

As to an incident involving one of the children needing to be picked up from school due to a personal issue, Defendant asserts Plaintiff was not the parent who accomplished this but it was Defendant's present wife who was able to do so. Defendant posits that this is just one more instance why he and his present wife are more able to mee the children's needs. Plaintiff counters that the Defendant's wife works from home and the Plaintiff was at work that day and that both parties agreed that Defendant's wife is normally on the "blue card" and Plaintiff was not trying exclude her and was fine with her picking up the child. There was testimony regarding access or lack of access to the emergency contact card also known as a "blue card".

Plaintiff argues that the Defendant had an issue with E.L. getting a 30 on a test of the map of Italy when Plaintiff studied with her because the Defendant stated that she gets much better grades when studying with him but neglected to state that the entire class retook the test. Plaintiff further argues that it was not her fault for the child failing as the Defendant claims and the claims by the Defendant that the children getting higher grades in his care and he deserves more parenting time is insignificant.

Plaintiff stated that Defendant claims that the grades of the child dropped after the schedule reverted to a strict 50/50 time sharing post pandemic, with the implication being that the children being with the Plaintiff more caused their grades to suffer and that if the Defendant was really involved the Defendant would have noticed a drop in grades prior the end of the marking period.

Plaintiff testified that she was unable to take the children to medical appointments as Defendant claims because the Defendant withheld the insurance cards and by the time, he provided them he had changed the children's pediatrician. Defendant counters that the Plaintiff did not object as she trusted his opinion on the matter even though he deliberately held on to the insurance cards until after the switch of the doctors was made.

Plaintiff argues that Defendant claims that the parties switched the doctor together and that in the past he had made all the doctors' appointments and that prior to the cross motion the Plaintiff never appeared for any doctor's appointments is in error as the Plaintiff stayed home from the time the children were born and took them to all doctor's appointments prior to 2015.

Plaintiff posits that any change in grades is insignificant as that she is involved in the children's schooling as she made the choice to have the children go to school remotely during the pandemic instead of blended learning and she was able to structure the school days for the children during the remote learning. Plaintiff testified that she is also involved with the children's teachers and that she did not need to go to the student teacher conferences since the children were doing well and spoke to a teacher via telephone or by other means.

The Plaintiff argues that the Defendant's claims that the children do not shower at her house and are disheveled is not accurate as at times the children come from Defendant's house disheveled. The Plaintiff further argues that the children are 13 and 17 and they can take a shower whenever they want as the Plaintiff also purchases hygiene products for the children and the children's hair.

The Plaintiff testified that she has done the best under the circumstances. It is undisputed and that she refuses to speak with Defendant's new wife and denies allegations that she did not invite him and his family to the daughters sweet 16. She asserts that she is involved in the children's lives and monitors their schoolwork. Defendant apparently discounts Plaintiff's claims of economic need because she paid for an expensive sweet 16 for the older daughter.

Plaintiff testified with pride about her children and how she enjoyed spending time with them and provided insight into how they were two different children but certainly was proud of them.

Her testimony was credible that she wants the children to have a relationship with their father and that he has been of help when covering some of the extracurricular activity transportation because of her work schedule and she readily admits she does not speak with the Defendant's present spouse. She asserts that it is that same need to work and earn money which has prevented her from attending after school events and was the basis to welcome the Defendant's offers of transportation and attendance at events.

She denies that she has not been involved in the children's health care and has made as many appointments as possible.

Defendant testified that he has been employed in a union job for about 4 years and he is a "heat-controlled" mechanic. Defendant further testified that his base salary is $29.96 per hour which he asserts comes out to about $60,000.00 to $65,000.00 per year and that he earned $83,000.00 with overtime in the 2019 year.

Defendant testified that he is the primary caregiver of the children and is the parent who takes the children to their doctors' appointments, assists them with their schooling and meets all their other needs. Defendant elaborated regarding his caretaking of both children from when the parties divorced up and until the present. The Defendant further testified that he researched his daughter's doctors and that he was the one who helped with homework, projects, PTA, appointments, and extracurricular activities. He asserts that when the Plaintiff did make an eye doctor appointment for one of the children he was not notified, and he was the one who arranged for medical care when there was a need and sought alternatives to surgery.

Defendant testified that he attended all the children's parent teacher conferences and that the Plaintiff did not attend a single parent teacher conference until after his filing of the cross motion in 2018 and still she only attended one conference for one of the children. Defendant also testified that Plaintiff only started to pick up E.L. from cheerleading after the filing of the Cross Motion. Defendant's wife testified that the Plaintiff attended one out of at least 16 cheerleading competitions over a four-year period but only after the Cross Motion was filed.

The Defendant posits that there was a change in circumstance in October 2015 that caused the parenting time schedule to change from the Defendant having the children three-and-a-half days per week overnight to four to five overnights per week. The Defendant further testified that the schedule changed because D.L. wanted to join cheerleading and carpooling did not work out so Defendant picked up both children from school and brought them to his home and the children began sleeping at his home 5 night's per week.

Defendant testified that in 2015 he had the children between four to five overnights and the Plaintiff voiced no objections to the schedule after the change occurred and the Plaintiff did not take any steps to enforce that parties' Stipulation of Settlement. Defendant testified at trial and displayed a calendar to allegedly show the change in the parenting time schedule, which Plaintiff asserted was not totally accurate.

Defendant testified that the schedule reverted back to the three-and-a-half-day schedule in the Stipulation of Settlement after the current proceeding began and that after the change in parenting time schedule D.L.'s grades started to decrease in English, Algebra and Physical Education when she was spending more time in the Plaintiff's home.

It is conceded that during COVID-19 pandemic the parties again amicably changed the parenting time schedule so that the children would spend one week at each parent's home to avoid too much transportation between the homes. That when the children are with him during his week the children sit around the dinner table with him and his present wife to do homework. This is the schedule presently in effect.

Defendant believes that he is the parent who provides the superior home environment as the children each have their own bed, a desk, a couch bathroom, and there is a spare room where the children do their homework. Defendant went through great lengths to describe his large home and that the first floor has a kitchen, dining room, living room and den area and also described the backyard area which has a pool, with a wraparound porch and vegetable and fruit patch. The Defendant described the basement to show that the children have room to grow. In addition to having family members near his home, when he works some overnights at his job, the children are home with his present Wife. Defendant's present Wife testified that she makes sure the children do their homework, prepare for the next day and do house chores and that she bakes with them.

Both the Defendant and his present wife assert that when the children come to their home after being with their mother, they appear disheveled and that they do not have adequate toiletries at the Plaintiff's house. The Defendant's wife claims the children rush to the shower and appear not to shower when with the Plaintiff. The Defendant also asserts that he is more understanding of the needs of the children and that they identify more with him. The Defendant also asserted that the Plaintiff interfered with his ability to deal with the school because he was not on the "blue card". He placed great emphasis on the fact that he had greater insight into the children.

In summation (which is not evidence) the Attorney for the child argues that the evidence adduced at trial demonstrated that the Children love both parents equally, but enjoy spending time with their Father more than with their Mother and given their ages and levels of maturity, the children's feelings should be given great weight, and the Court should grant their request to spend more time with the Father.

The Attorney for the Child argues on behalf of his clients that the two-week/one week schedule would allow the children to remain with the Defendant more than the Plaintiff without deteriorating the relationship and bond with the Plaintiff as the Plaintiff works during the week and will have the children every other weekend on days she does not work.

The Attorney for the Child argued that the change in overnight schedule continued for multiple years with the Defendant keeping records as to how many overnights were had per parent and the father having a substantial amount more time. He further argued that the Plaintiff did not make any objections for years as to the new arrangement as the Plaintiff understandably had conflicts with her work schedule. The Attorney for the Child asserts that the Defendant's schedule is more flexible giving him more time with the children while the Plaintiff's schedule is stricter, and the Plaintiff made no effort to confront this point.

It is for these reasons the Attorney for the Child supports that the Defendant to be the primary caretaker of the children and even though the parties agreed to the Plaintiff being the primary caretaker originally and assumed the role originally of primary caretaker.

Counsel asserts that it is this change of circumstance that justifies the Court to set aside the original order. The Attorney for the Child argues that the modification that it is not only in the best interests of the children but is what works for this family and what the children want and supports the two weeks with Defendant schedule and one with the Plaintiff.

Defendant requests this Court award him residential custody of the children and the following parental access schedule: Two weeks from Monday through Friday with Defendant; One week from Monday through Friday with Plaintiff; and Alternating weekends.

Defendant requests the following holiday schedule: Christmas Eve overnight to Christmas Day every year; Alternate New Year holiday with Plaintiff; Palm Sunday and Easter Sunday every year; Winter and Spring break every year; and 4th of July every year.

The Attorney for the Child requests that Court issues the following: Modifying the Stipulation of Settlement to make the Father the residential custodial parent; Modifying the stipulation of settlement to change parenting time to the two week/one-week rotation in the favor of the Father; Since the Stipulation of Settlement does not specify holiday visitation time, the Court should modify the Stipulation in the following respects:

(a) Alternate the New Year's Eve/New Year's Day Holiday between the parties every year.

(b) Award the Father parenting time for winter and spring break every year.

(c) Award the Father Palm Sunday and Easter Sunday every year.

(d) Award the Father July 4th every year; and

(e) Award the Father Christmas Eve through Christmas morning every year.

Plaintiff is asking the Court to order that she have a two-week vacation over the summer.

It appears that the Plaintiff requests the Court entertain a holiday vacation schedule.

Conclusion

The Court in Matter of Connell-Charleus v Charleus, 140 N.Y.S.3d 752, 2021 NY [2nd Dept 2021] ruled that:

"A party seeking modification of an existing custody arrangement must show the existence of such a change in circumstances that modification is required to ensure the continued best interests of the child (Matter of Sidorowicz v Sidorowicz, 101 AD3d 737, 738; see Matter of Fargasch v Alves, 116 AD3d 774). While joint custody is encouraged as a voluntary alternative for relatively stable, amicable parents behaving in mature civilized fashion (Braiman v Braiman, 44 NY2d 584, 589-590), joint custody is inappropriate where parents have evidenced an inability to cooperate on matters concerning the child (see Matter of Schweizer v Jablesnik, 95 AD3d 1341; Matter of Edwards v Rothschild, 60 AD3d 675, 677). "A change from joint legal custody to sole custody by one parent is warranted where `the parties' relationship is so acrimonious that it effectively precludes joint decision-making'" (Matter of Schweizer v Jablesnik, 95 AD3d at 1342, quoting Matter of Picado v Doan, 90 AD3d 932, 933). Moreover, inasmuch as a court's custody determination is dependent in large part upon its assessment of the witnesses' credibility and upon the character, temperament, and sincerity of the parents, the court's exercise of its discretion will not be disturbed if supported by a sound and substantial basis in the record (see Matter of Shisgal v Abels, 179 AD3d 1070; Matter of Ruiz v Carie, 179 AD3d 1069; Matter of Pritchard v Coelho, 177 AD3d 887)"

There has been a change of circumstances the question is do they rise to the level of an unforeseen or unanticipated change. In the matter of Walter v Walter, 178 AD3d 991, 992 [2d Dept 2019], the Second Department stated: Modification of a court-approved stipulation setting forth terms of custody or [parental access] is permissible only upon a showing that there has been a change in circumstances such that a modification is necessary to ensure the best interests and welfare of the child. (Greenberg v Greenberg, 144 AD3d 625, 629, 41 N.Y.S.3d 49; see Hughes v Hughes, 131 AD3d 1207, 1208, 16 N.Y.S.3d 861; Anonymous 2011-1 v Anonymous 2011-2, 102 AD3d 640, 641, 958 N.Y.S.2d 181). The best interests of the child are determined by a review of the totality of the circumstances (see Eschbach v Eschbach, 56 NY2d 167, 171, 436 N.E.2d 1260, 451 N.Y.S.2d 658; Goldstein v Goldstein, 68 AD3d 717, 720, 889 N.Y.S.2d 661).

"Where parents enter into an agreement concerning custody, `it will not be set aside unless there is a sufficient change in circumstances since the time of the stipulation and unless the modification of the custody agreement is in the best interests of the [child].'" McNally v. McNally, 28 AD3d 526, 816 N.Y.S.2d 98 (2nd Dept. 2006), quoting Smoczkiewicz v. Smoczkiewicz, 2 AD3d 705, 706, 770 N.Y.S.2d 101 (2nd Dept. 2003). "Although the totality of the circumstances of the case and the best interests of the child are factors to be considered in all cases where modification of custody is sought where the parties have entered into an agreement, the agreement is entitled to considerable weight and it is incumbent on the party seeking the change to show that in light of changed circumstances continued adherence to the agreement would not be in the children's best interests." Steck v. Steck, 307 AD2d 819, 763 N.Y.S.2d 54 (1st Dept. 2003).

Courts have carved out factors which must be considered in ascertaining whether a change in an existing custodial arrangement is in the best interests of children, including (1) the individual needs and expressed desires of the children; (2) the need of the children to live with siblings; (3) the continuity and stability of the existing custodial arrangement, including the relative fitness of the parents and the length of time the present custodial agreement has continued; (4) the quality of the children's home environment and that of the parent seeking custody; (5) the ability of each parent to provide for the children's emotional and intellectual development; and (6) the financial status and ability of each parent to provide for the children (Fox v Fox, 177 AD2d 209, 210, 582 NYS2d 863 [4th Dept 1992]; see also Eschbach v Eschbach, 56 NY2d 167, 172-173, 436 NE2d 1260, 451 NYS2d 658 [1982]).

The change in circumstances in the case at bar are that the Defendant no longer works very long hours in the Pizzeria business and he has a union job, his work hours have changed and he is able to spend more time in the afternoons and evenings during certain days of the week with the children. He has remarried and his new spouse has developed a close bond with the children while recognizing that she is not their mother but has ample time devote to the children. That the children have adapted to and appreciate the resources their father can provide including a large home, pool, resources for vacations and the clear desires of the children to spend more time with the Defendant than the Plaintiff. The Defendant has been actively involved in the children's daily needs including but not limited to school and medical needs.

It is well established in New York that the Court must consider the desires of the children. They obviously were young when the agreement was signed. Children's preference are one factor to consider in determining where custody should lie and although a child's preference, in itself, is not a material change of circumstance sufficient to justify a change in custody from one parent to another (see Fox v Fox, 177 AD2d 209 [1992],), the older and more mature the child, the greater weight will be accorded to the child's preference (Eschbach v Eschbach, 56 NY2d 167 [1982],). It has been held in this Judicial Department "Substantively, and more importantly, it cannot be denied that a teenage child has a real and substantial interest in the outcome of litigation between the parents as to where the child should live and who should be entrusted to make decisions for the child. It seems self-evident that the child is the person most affected by a judicial determination on the fundamental issues of responsibility for, and the environment of, the child's upbringing." Newton v McFarlane, 174 AD3d 67 (2nd Dept. 2019). The Court in Newton, found that the Family Court erred in "failing to give due consideration to the expressed preferences of the child, who was 14 and 15 years old at the time of the proceedings in the Family Court, and who communicated a clear desire to remain in the father's custody."

Additionally, this Court must also consider the applicable precedent in this State which disfavors separation of siblings. The Court in Eschbach v. Eschbach, 56 NY2d 167, 436 N.E.2d 1260, 451 N.Y.S.2d 658 [1982] stated that:

"this court has long recognized that it is often in the child's best interests to continue to live with his siblings. While this, too, is not an absolute, the stability and companionship to be gained from keeping the children together is an important factor for the court to consider. Close familial relationships are much to be encouraged. (Ebert v. Ebert, 38 NY2d 700, 346 N.E.2d 240, 382 N.Y.S.2d 472 [1976] Young brothers and sisters need each other's strengths and association in their everyday and often common experiences, and to separate them, unnecessarily, is likely to be traumatic and harmful. (Obey v. Degling, 37 NY2d 768, 337 N.E.2d 601, 375 N.Y.S.2d 91 [1975])"

Here the older child is 17 and turns 18 this year. Once she reaches the age of 18 the Court is divested of jurisdiction on the issue of custody and the residence of the child. (see Slater-Mau v Mau, 4 AD3d 658, 772 NYS2d 134 [2004]; Matter of Lazaro v Lazaro, 227 AD2d 402, 642 NYS2d 67 [1996])" See: Gugliara v Veras, 170 AD3d 815, 93 N.Y.S.3d 883 [2nd Dept 2019]

It is clear to this Court that these children should not and must not be separated. With the older child clearly desiring to live with the Defendant two weeks in a row and having the ability to do so absent court order shortly would leave the younger daughter without the benefit of being with her older sibling a substantial amount of time. The younger daughter also desires that residential custody be on a two-week Defendant and one-week Plaintiff parenting time.

There is no doubt that the Defendant loves his children and wants for them the best care and resources possible. He clearly understands them and has a devotion to them. It is also admirable of the amount of support and assistance his present wife provides to the children. Similarly, there is absolutely no doubt that the Plaintiff loves and cares for these children and the children love her. In fact, she has been more willing to sacrifice her standing as a joint residential parent to meet their needs.

Under existing case law and especially in light of Newton (Supra) the desires of the children together with the clear increase in the Defendant's parenting role and the time the children spend with him the change is warranted. Thus, the court grants the Defendant's application for residential custody and the schedule for the children to be with him is modified to two weeks from Monday through Friday with Defendant; One week from Monday through Friday with Plaintiff; and Alternating weekends.

The Court believes that there is no basis to modify the party's agreement of joint legal custody. For the most part they both have taken active rolls in the children's lives and are able to communicate with each other. Although the relationship between the both parents in this case is not perfect, the relationship does not rise to the level that it is so acrimonious that joint decision-making is not possible. The parties agreed to joint legal custody and there is no basis to change that at this time.

There is a basis though to change residential custody from the Plaintiff to the Defendant, based upon the clear and unequivocal request from the children.

What is of concern to the Court is what appears to be an economic disparity between parties influencing the ability of one parent to provide far more resources to meet the needs and desires of teenage children while the other party has had to seek enforcement of child support obligations while working full time.

All parties and the Attorney for the Children appear desirous of the court scheduling a firm parenting holiday schedule. The Court orders:

(a) Alternate New Year's Eve until New Year's Day morning 10 A.M. between the parties every year with odd years to the Plaintiff and even years to the Defendant.

(b) Alternate New Year's Day between the parties every year with odd years to the Defendant and even years to the Plaintiff.

(c) Alternate the winter and spring break between the parties every year with odd years to the Plaintiff and even years to the Defendant.

(d) Alternate the Palm Sunday and Easter Sunday between the parties every year with odd years to the Defendant and even years to the Plaintiff.

(e) Alternate July 4th between the parties every year with odd years to the Plaintiff and even years to the Defendant including the entire weekend if legal holiday falls on a weekend or a Friday or Monday.

(f) Alternate Christmas Eve until Christmas morning 10 A.M. between the parties with odd years to the Defendant and even years to the Plaintiff until Christmas morning 10 A.M.; and

(g) Alternate Christmas Day between the parties with odd years to the Plaintiff and even years to the Defendant.

The Court must note that it has struggled with the concept and concern that the financial resources available to the Defendant while at the same time the Plaintiff earns less, works more daylight hours, and was owed child support had some impact on the children's choices. Notwithstanding, this the Appellate case law regarding wishes of the children, their age, their closeness as siblings and the Defendant's efforts regarding the children warrant the change in residential parenting time.^[1]

This shall constitute the decision and order of this Court.

[1] Given the fact that New York does not recognize a right for child support for a nonresidential custodial parent. See: Rubin v. Della Salla, 107 AD3d 60, 964 N.Y.S.2d 41 (Appellate Division First Dept. 2013) this decision may very well have a further consequence to the Plaintiff which can only be remedied by legislative action."