New York Family Law Blog
The father, who is thirty-two years of age, and the mother, who is thirty years old were married in New York. A New York Family Lawyer said while married, the father worked as a first grade teacher and the mother worked as a mandarin interpreter. The couple knew each other for only a short time prior to their marriage, at which point, the mother became pregnant with their child. The mother gave birth to a son and at the time of the son’s birth the couple was living separately. However, during the early days of the marriage, the couple lived at the mother’s relative’s residence in Brooklyn. A great amount of the couple’s marriage can be characterized as tumultuous and there were incidents of domestic violence.
The father commenced a divorce action alleging cruel and inhuman treatment. Initially, the mother appeared without a counsel but later retained one. The mother was allegedly served with the summons with notice in an action for divorce at a Family Court.
In support of her request that she be awarded full legal child custody, the mother alleges that the father is merely trying to avoid paying child support and that he does not really care about child custody. A Nassau County Family Lawyer said she argues that, until recently, the father lacked involvement with the child since the child was conceived. The mother contends that the father demanded a paternity test to prove his relationship to the child, but even after paternity was established, the father had little to do with the child. The mother avers that, as recently as 2005, the father was willing to forego child custody, in favor of the mother.
The mother argues that if the father is awarded child custody, he will limit access between her and her child. The mother contends that the father will be influenced by his parents, who do not like her, and that they would encourage him to keep the child from her. She claims that the father’s parents took away the father’s use of a car when they learned the couple was seeing each other after the divorce was commenced. The mother further contends that while the child was living with the father, her sister who was visiting from California called the father hoping to see the child. The mother asserts that the father refused to allow her sister to visit the child, even though the visit would have taken place while the father was at work and would not have interfered with any plans he may have had with the child. In contrast, the mother testifies that she will allow the father to see the child as she did when she complied with court orders and flew the child from California to New York to see his father. Furthermore, the mother contends that she voluntarily brought the child to the New Jersey Army base so that the father could visit with the child prior to being deployed to Iraq; however, the father avers that her visit to the Army base was motivated more by an attempt to divert more of his military paycheck than to provide him access to their child.
The father filed an order to show cause seeking visitation with their minor child which was granted. The matrimonial proceeding was stayed when the father was deployed to Iraq. Thereafter, upon his return, the couple entered into a written stipulation on the issues of child custody and visitation, which the court ordered. A Nassau County Child Support Lawyer said the couple’s stipulation resolved the issues of child custody and visitation and provided that the mother would have custody of the child and that she could relocate with the child to California. The stipulation provided that the mother shall have sole custody of the infant subject to schedule of visitation to be arrived at by the couple and their counsel. The father shall visit with the child on next court date. On consent, the issue of relocation is resolved and the mother shall not be asked to relocate with the child from the State of California. California shall remain the child’s residence.
While in the mother’s custody, the child returned from a visit with the father with redness around his penis. Allegedly concerned about the child’s well-being, the mother took him to the emergency room. At the hospital, a doctor filed an Administration for Children’s Services (ACS) report questioning whether the child had been sexually abused.
It is certain that, fearing that the child would be taken away, the mother cut the child’s hospital security bracelet, and took him to Connecticut, after learning that ACS was investigating both parents. Thereafter, ACS placed the child with the paternal grandparents, and both parents were named as respondents in an abuse proceeding.
In response to the ACS petition, a hearing was held in a Family Court, where the judge initially issued an order restricting the child’s removal from the State of New York. The parties appeared in the court but the divorce action was stayed until the abuse proceeding was concluded. Additionally, the court issued an order restricting the child’s removal from the State of New York. A judge issued a decision and order granting the mother’s application. At the conclusion of the heavily contested hearing, the court concludes that the child’s medical condition was not an injury. Therefore, it does not need to inquire further whether it was the result of sexual or physical abuse or neglect. The application by the mother is granted for the court finds the expert opinion on the matter wrong. The conclusion was based upon a cursory investigation that was incomplete and procedurally flawed. When weighed against the pediatric expert opinion of another doctor, the child’s life long treating physician, the court finds the expert’s testimony more credible, persuasive and convincing…
Moreover, the court found the explanations by both parents persuasive. Although the court finds the mother’s testimony contrived and tailored, nonetheless, there is simply no evidence to suggest that she did anything to the child nor allowed anyone to care for the child who may have done something to him. There is no evidence that the father did anything nor is there anything that remotely points out that anyone else may have caused the child’s condition.
The mother denied making many statements that all the testifying witnesses said she made. Although it calls into questioning her credibility based upon her truthfulness as to collateral matters, the court is convinced that as to the ultimate issue, there is no imminent risk to the child’s life or health if he were to be returned to his mother. Although her behavior was arguably inappropriate when she removed the child from the hospital, without first notifying hospital personnel, nonetheless, there were no medical or other safety concerns at the juncture. The child was simply awaiting test results and no longer in need of any treatment. Removing the child rose to neither any civil or criminal infraction. Her conduct must be viewed in the context of a bitterly contested matrimonial action and not as a child protective one. The mother must learn to recognize that her immediate desire to flee or to strike out whenever challenged or confronted with a position inapposite to hers is inappropriate and counter-productive to her and her child. She must stop acting out of impulse without considering the consequences of her actions or she will lose the opportunity to have child custody. The court cautions the mother not to give into her impulses or to jump to erroneous conclusions and urges her not to file reports with authorities unless there is a good faith basis to do so.
The opportunity is being provided to the mother in part because of the domestic violence, clear power imbalance and the court’s belief that the father knew all along where the child was in California and waited for an opportune time in his life to regain custody of the child. Given the information presented in the father’s writ application, the court had no alternative but to place the child in the father’s care during the substantiated period of time of litigation with the mother having limited access to the child. The mother should have never left New York with the child; however, the court agrees with the attorney for the child that the father’s explanations of trying to locate the mother and child were disingenuous.
The court will hold the mother to her testimony that she will reside in New York City as a requirement for retaining child custody. In doing so, the court finds that the mother is credible as to her intentions to provide meaningful contact between the child and father. The court recognizes that the mother has created a suitable home for the child to move into with a new room for the child. Under the scenario, the father will be able to have regular visits with the child.
The child shall have parenting time with the father, every other weekend, to be picked up from school on Friday at the conclusion of the school day and returned, directly to school, on Monday morning at the beginning of the school day. If the father cannot make arrangements to have the child returned to school at the conclusion of the weekend, he shall return the child to the mother, curbside only, on that Sunday at 8:00 p.m., with telephone notice to the mother. The couple shall alternate New Year’s day, Martin Luther King day, President’s weekend, school winter recess, school spring recess, Memorial day, Labor day, Columbus day, Thanksgiving weekend and school winter intercession New Year’s Eve. The parties should also alternate religious holidays. Commencing September 2008, the father will have the child for Labor Day weekend and the couple will alternate holidays accordingly thereafter. The child shall always be with the mother on Mother’s day and the father on Father’s day.
The father shall have unfettered access to all medical, dental, psychological and educational records of the child. The father shall receive notification of all medical appointments and school events and extra-curricular activities and shall attend same if he so desires. He shall have the right to attend all parent teacher conferences, receive all report cards, standardized test results, admission test notifications and doctor’s appointments. If the child is admitted to a hospital or receives emergency medical treatment he shall be notified immediately and shall be allowed to attend and visit the child and participate in planning for the child’s medical treatment. The father shall be able to telephone the child each day at a time agreed upon by the parties and said conversations shall not be monitored. During periods of vacation each party shall know the location and telephone number to enable access to the child. The child’s passport shall be maintained by the father. If the mother seeks to leave the country with the child she shall do so only with written permission of the father (said permission shall not be unreasonably withheld) or court order. The father shall be informed and receive copies of all plane tickets purchased on behalf of the child.
The court recognizes that the two parties have very different parenting styles and very different outlooks on life. While each must respect the others parenting styles, they must understand that their child deserves, and must have, full cooperation of both parents in order to thrive. The court negatively views any attitude or actions that limit access to the child or that appears to demean the other parent to the child.
In determining child custody, a NY Child Custody Attorney must not look upon the interest of a parent as a vehicle for punishing one another. A New York Child Support Lawyer must remember that the true test of determining the amount of support that parents should provide their child would have a significant effect in the best interests of the child. Whether you have a custody dispute, or need an order for protection, contact Stephen Bilkis and Associates for assistance.