Вы находитесь на странице: 1из 14

J

f o p ih@ O m i n t y of

. Submitted Novimbif 5,2014


Deeidod Novimber 17,2014
Pili No,; 5774 - Docktt Nog.: V.027641/14A & V'0027541/14B

OHEISTY'
Ptitwnr'EsMpondmt,
DAVID I
Respondent-Petitioner.
Decision and Order
Bryan Ldam Keimellv. Esq., Lake Placid, New York, for
Christy"
Whitson Law {Debra A, Whitson, Esq., of counsel)
EHabethtown, New York, for David
OmshantiH. Pamea, Esq., Plattsburgh, New York, Attorney
for the Child,

9T/30

30Vd

ID A l I W J AID X3SS3

9S9EEi88TS

90:TT

fT0S/iT/XT

Page 4-

..xxufei: r.- * ,

Petitions by C W y '
.) and David ^
for modllkation of m order of custody and visitation datta
October il, 20U,
.'H't'lrA oomffloncid btr proceeding on Jimus*y 10,2014 by fiUag &
petition and an affidavit for imorftncy reliif in the nature of an
immediate, ^p^^^temporairy orde-r of custody of the parties then four
year old child (d/o/bi 02/01/20003. After taklnf/r?<)rT>"<.. sworn ttithnony,
this Court issued a temporaiy order awarding tmohx temporaj^ custody of
the parties' child and issued a temporary order of protection against
JiLtJ* providing, inter ah'a, for him to stay away from her and have no
contact or communication. Two days later,: d cx.<j fUd his own petition
and application for emergency relief, claiming /worn.' g petition and affidavit
were totally false* No immediate relief was granted to J i^<^L 7.
A trial of the issues was commenced on August 20, 2013, and it
again resumed on October 23, 2014. During the course of the trial, the
Court heard testimonyfromthe parties and from ino>'n $ mother. At the
request of the attorn^ for the child, the Court conducted a Lincoln
hearing (Lincoln v. Lincoln. 24 N.Y,2d 270,273-274,299 N,Y.S.2d 842,247
N.E.2d 659) despite the young age of the child. This Court has assessed
the character, temperament, and sincerity of the parents, and evaluated
the credibility of the parents and other witness based upon their demeanor,
the maiuier in which t h ^ testified, and the consistency, accuracy and
probability or improbability of their testunony in light of all other
evidence. The Court's findings of fact are set forth throughout the
remainder of this decision and order,
A.
At the outset of this case,
perpetrated a deception upon this Court
and procured the current custody arrangement luider felse pretenses.
When she appeared before this Court on January 10, 2014, she and
l^i, Brown (Brown), the mother of another of cjofl's children,
concocted stories about d^d'Ji , alleged domestic and child abuse.
Testifyingxmder oath before this Court at that time, rm-oi- made numerous

si/ee

3Wd

iO A l l W i M O X3SS3

tt&eisim mA Ofdee

statiments whkh turned out aot to be true or whleh were aot proven,
It came to light at trial that the instant petition was handwiritten by Brown
who was then under the influenot of drugs, a condition of which rnoJr
knew or became aware shortly after leaving the court house. Alcm never
disclosed that circumstance to this Court until trial, some ten months
later, Mem; admitted knowing that Brovm was a "hardcore intravenous
drug user" and yet she thought it was a "good idea** fof Brown to have
mitody of c^cxcV^ ' ion with Brown. Additionally, me.M testified on
January 10,2014 to alleged acts of physical and verbal abuse by dad
ofher and the child, none of which were proven at trial. Although she then
testified that .c\cvd struck the child in the face with his open hand
bloodying the child's nose, at trial she admitted that she did not witness
this alleged incident. She told the Court at that initial appearance that she
had met with domestic violence and child protective service staff and that
she would be relocating with the child to Tupper Lake, At trial, she
contradicted this testimony, admitting not only that she did not meet with
any such persons but that she also returned to the home she shared with
(^^K<\d ultimately spent the night there despite having obtained a
temporary order of protection against deA that required him to stay
awayfiromher and have no contact or communication with her. Notably,
vivucc^ had a vehicle in her possegsion and could have picked the child (and
her two other children) up at school and driven to Tupper Lake. Instead,
she let the children return to ckc^^ home, where she met them, and
later went out drinking at a local bar before returning to Mctii S , home
in the early morning hours to sleep, (VW A <:ilso tel^honed cJ cvJ 'at least
once after obtaining the order of protection and continued to contact him
thereafter with entreaties to get back together, dei^te telling this Court
of purported harassing telephone and text message commujaications by
d CiA ivhich she curiously deleted from her phone and failed to prove
at trial. Mo.'ft'^ behaviors following her appearance before this Court on
Januaiy 10,2014 is both questionable and disturbing, and is hardly the
type of behavior that someone would engage in if she or the subject child
were truly subjected to the conduct allegedly committed by "^^^
4 credibility was further diminished by her contradictory and
evasive testimony at trial, and her demeanor. MCM testified at trial that

9T/f0

39Vd

'10 A l I W J AID X3SS3

9S9eei88TS

90 : n

t?X02/iT/n

Deoi&loA mi Otiisf

shi oeuld net gtt to Tupptr Lake on January lO*** bteause shefaadno
transportation (even though she had posiiision of the Jeep vehielf all that
day). When asked if herffiothfr,thi naateraal grandmother, who lives in
Tupper Lake, oould have oome to p i her and the children, ftiorr* ^rst
stated that the pandmother was unable to do lO because the grandmothor
was ''busy". She later changed her testimony to say that the grand
mother, did not drive at ni|^t, which was later conArmtd by the
^andmother's own testimony. However, no explanation was provided by
r*^o o\r th pandmother as to why th grandmother's husband, who had
his own vehicle, could not have provided the transportation. At one point
during her testimony, when answering questions concerning her discovery
of marijuana in her son's room,
was smiling as if it was no big deal
that her then fifteen year old son used or possessed such substances. This
is considerably concerning to this Cburt as fTicina has an admitted history
of drug abuse, as well as mental health issues including an attempted
suicide, which formed the basis for the October 2011 order of limited
supervised visitation, Her testimony regarding the claimed verbal and
emotional abuse inflicted by ^csA upon her, the child, and other
children in their home was general and non-specific. MOM - explained her
inability to provide any details of such conduct to an inability to remember
dates and times when things hs^ppened, as well as to a loss of memory from
an accident years ago, which itself was unproven.
B.
"An existing custody order will be modified when the person seeking
modification establishes a sufficient change in circumstances that has
occurred since the prior order and which establishes a need for
modification in the best interests of the children isee Matter ofMeyer v.
Lerche, 24 A.D.3d 976, 976-977, 807 N.Y.S.2d 161 [2006]; Matter of
Mathis V, Farkhurst, 23 AD.3d 923,923,806 N.Y.S.2d 166 [20061; *1119
Matter ofBrown v. White, 3 A.D.3d 743, 744, 770 N.Y.8.2d 809 [2004])."
(Peck V. Bush, 35 A.D.3d 1118, 1118-1119, 826 N.Y.S.2d 496, 497 [3d
Dept., 2006]), Not just any change of circumstances will suffice. The
change must be of such magnitude as to reflect "a definite need for
modification to ensure the best interests of the children." C Thompson v.

SX/S0

39Vd

10 AIIWVJ AID >aSS3

9S9eei88TS

90: II

fI02/ZI/II

Page

A.md BIB, Bll-BIB, ^80 N.Y.S,2d 181, IBB [M Dipt.,


V- PMrkhuP^t 23 A,D,3d 923, 023^4, SOS
N,Y,i.2d 155,156 [Sd Dipt,, 2005] [ "As ixlgtinf eustady ordtr will b
mddilled only if thiri is n ihdwiag of n changi in circsumstaneis rtvitliof
a rttl Rifd fer the modifleatiea in order to ensure the best interests of the
ebildren"). "It is only when this threshold ihowlng has biin madt that
Family Court ms^ preoiid to undertake a best interest analysis is$
Matter ofOpiffln v. Qdffln, Bupr^ at 909, 795 N,Y.S,2d 367)" iMimJL
Lsraha. 24 A,DJd 976,977,807 N.Y.S.2d 161 [Sd Dept., 2005]} $Jm,
Kevwin v. EerwM. 39 A,D.ad 050, 951,833 N.Y.S.2d 604,606 [Sd Dept.,
2007]),
Here, a change of circumstances was established by the partiei'
reconciUation and cohabitation following th October 2011 custody order
frantinf joint legal custody and primary physical custody of the child to
Fleming JMm mimartin v. mimartin. 44 A.D.Sd 1099,1101,845 NXS.2d
466,468 [3d Dept., 2007]). Moreover, there is a real and definite need to
modify the esfisting custody order since the evidence showed that Ji^cm has
continued with her mental health treatment as required by the October
2011 order and she was able to care for the subject child and other
children, though not without some significantly concerning behavior
involving a child not her own, during her post-order cohabitation without
supervision. "'Supervised visitation is appropriately required only where
it is established that unsupervised visitation would be detrimental to the
child' (Matter of Gainza v. Gamssa, 24 A.D.3d 561,808 N.Y.S.2d 296; see
Roaenbergv, Mosenberg, 44 A.D.3d 1022,1024,845 N.Y.S.2d 371; PurceU
V. PurceU, S A.D.3d 752, 753, 773 N.Y.8.2d 569)" iCervera v. Breasler. 60
A.D,3d 837,839,865 N.Y.S-2d 668,661 [2d Dept., 2008]). This Court finds
that the evidence established that it would not be detrimental to the child
for (r*^^ to have unsupervised visitation,
C.
As to the change of physical custody sought by N^vn in her petition,
this Courtfinds,based upon mt^v'>s' lack of credibility and failure of proof,
that primary physical custody of the child should remain with d^vtl as
ThampMM, m
imBh m

9X/90

*iO AHIWWJ AlO X3SS3


3DVcl

9S9eeZ.88T9

90:TI

fT03/ZX/TT

fags 'I"

...^

pmvidsd in the Od^pbtr 2011 srd#r because such is in the child's best
intereits, "'Wbt there is no indication that a c h ^ e in cujtody will
result in si^iUcantly eahtaeinf a child's welfare* It is pnerally considered
in his best interest not to disrupt his life' (Mm, PamlskI v, BmhholtM,
mpm tt 1201,450 N,t,SJd 100)" (QUahmU v. OitshMll 105 A,D.2d 800,
805, 560 N,Y,S,2d 350, 808 [Sd Dept., 1000]). ^'The custody of Infant
childrtn is not to be shifted ftom parent to parent merely btcauio the
noncustodial parent has experienced an improvement in coiuiltion, status,
or character. At least this i true so long as the custodial parent has not
been shown to be unfit, or perhaps less fit, to continue to serve as the
proper custodian, E, g., People ex rel. Oiendexiing v. Gleadenlng, 250
AppDiv 384,10 N.Y,8,2d 603, ammedm NY 598,29 N,E,2d 926; Matter
ofStandieh, 197 AppDiv 176,183,188 N.Y.S. 900,90S, affirmed 233 NY
689.136 Nl 972; People ex rel. Ludden v. Wimton, 84 Misc 21,69 N.Y,8,
452, emrmedet AppDiv 614, 70 N,Y,S. 1146; AppUcatlon ofJackaon, 19
Mi8c2d 504, 160 N.Y,S,2d 578; Restatement, Oonllict of Laws, $ 148."
(AppUmtion ofLanf. 0 A,D.2d 401,409,193 N.Y.a2d 763,770-771, affd
7 N.Y.2d 1029,200 N,Y,S.2d 71,166 N.E,2d 861; aee, also, MatterofWout
V. Wemt 32 A,D.2d 709,300 N.YS,2d 24),
In arriving at this determination, this Court has considered the
requisite fjactors:
"Among the factors to be considered prior to the modification
of the parties' stipulation are the quality of the home
environment and the parental guidance the custodial pari^t
provides for the child {Escbbach y. Eachbach, supra, at 172,
451 N.Y,S.2d 668, 436 N,E.2d 1260; Matter of Ebert v.
Ebert, 38 N.Y.2d 700, 702, 382 N.Y.S,2d 472, 346 N.E.2d
240); the ability of each parent to provide for the child's
emotional and intellectual development {Porges v. Porges, 63
A.D,2d 712,713,405 N.Y.S.2d 115, Iv. denied, 45 N.Y.2d 710,
409 N,Y.S.2d 1029,381 N,E,2d 616); the financial status and
ability of each parent to provide for the child (Eachbach v.
Esehbach, supra); the relative fitness of the respective
parents, as well as the length of time the present custody has

9T/i0

3DVd

'10 A l I W J AlO X3SS3

939EEiB8T9

90=IX

fX0S/iX/XI

Page =7"
Dsdoien mi Ord^f

continued iMMitr ofm^M v. Uhlar, 43 N.Y.2d 242, 401


N.YJ.2d 168, 872 N,l,2d 4). Moreover, m tWs court hu
observed, 'priority in a custody diiputt should be ^ven to th
first parent who was awarded custody by voluntary
agreement' im^riCR v. VktorIsM, 143 A.0.2d 262.264.
632 N.Y,S,2d 176, quoting Mattsr otEishmm v. Mohmm,
104 A.D.2d 934, 935, 480 N.Y.S,2d 551; s&e idm,
FrMsrwitmr v. FrMerwltmr, supra, 66 N,Y,2d at 94, 447
Kf.Y.Sid 893, 432 N.S.2d 765; Matter of mhr-M v. Uhlar,
supra 43 N.Y,2d at 261, 401 NY.S,2d 168, 372 N.E.2d 4)"
[internal quotation marks omitted] (JCeatingv.Ka&tiag. Ul
A,D,2d 676,677,538 N.Y.S.2d286,287-288 C2d Dept., 1989]).
Also, "the effect of any alleged domestic violence upon the children
is a fkctor that must be considered, among others, in custody cases {see
Domestic Relations Law 240[lJ[a]\ of Lopez v, Bobinsott, 25
A.D.3d 10S4,1087,808 N.Y.8.2d 494 [2006]; see also Matter of Wissink v.
Wissink, 301 A.D.2d 36, 39, 749 N.YS-2d 660 [2002])" (KUmartin v.
KlJmriia, supra,).
Addressing the requisite factors for determining the child's best
interests, there was no credible evidence of any domestic violence upon the
children or/V7otr5< There was no credible evidence of any corporal
punishment, let alone excessive corporal punishment. The credible
evidence does not establish that! dox\k the subject child causing
her a bloody nose, or that'. J^aA _ physically abused his own son or rr\irf*>>
younger son. While there was testimony that Vi4 yelled at the
children and "got in their faces", the circumstances of such incidents were
not testified to nor was there any evidence as to how close
was to
the children at these times, what the tone and level of his voice was, or any
other relevant fact, A parent is not unfit merely because he or she yells at
a child. Much more needs to be proven to justify coxurt intervention
restricting a parent's "right to raise one's dWldren and to be with them,.
-. '(r)ights far more precious than property rights' (.May v. Anderson, 346
U.S. 528, 533, 73 S.Ct. 840, 848, 97 L.Ed. 1221, supra) [and] . . . are
'deemed essential' [internal quotation marks omittedHStanley v. Illinois,

91/80

39W

10 AIIWVJ AlO X3SS3

fm4'
406 U.S, 645,661,02 S.Ct, 1208,31 L,ld,2d 551, dting M^ei- v. NebrMske,
262 U,S, 390, 399, 43 S,Ct, 625, 67 L.Ed, 1042; 660, &l$o, Pknmd
PamntbQQdofOmt. Miamuri v. Dmibrth, 428 UJ. 62,90,96 S.Ct, 2831,
49 L.ld.2d 788 iStwuri, J., CdQCurring))" (SniwJsiJs v. Entwistls, 61
A,D.2d 880,884,402 N,y.S,2d 213,216 C2d Dipt,, 1978]). Moreover, the
sole source of this evidence wa? \y>civj ' testimony, and she simply viras not
a credible witness.
The facts relative to the quality of the home avironments, the
ability of each parent to provide parental guidance, and the financial status
and ability of each parent to provide for the child, all favor c^ad , This
Court did not find credible
accusation that AeA ; struck or
otherwise physically or emotionally abused either the subject child or lue
son with Brown^ Pt^v^ ^ has a stable residence with his girUHend in her
four-bedroom home in Ticonderoga, New York. Also residing with him is
the son he shares with Brown, for whom B^oJ^ has been awarded sole
legal and physical custody. The subject child has her own room. Both
<^cuX _ and his girlfViend are employed and financially stable. Each has
their own vehicle. /vom, resides in an apartment in Tupper Lake and is
employed part-time as a home health aide. Herfinancialcircumstances are
such that she relies on public assistance to supplement her living expenses.
She has no automobile and relies on the maternal grandmother for
transportation. No evidence .was presented as to the parties' support
obligations or the history of their compliance with court orders,
W&noVoidest son has been removed firom the home for drug use
over a number of months and a failure to attend school over an uni^ecified
period of time. The proceedings resulting in his removal were not initiated
by rYM^rr*, but instead by the school and she gave no testimony as to her
own efibrts to get this child substance abuse treatment, behavioral health
counseling, or obtain services for her son, prior to his removal./vlcvn'i
explanation for her son's behavior rested upon her belief that her son
Brown withdrew, and essentitilly recanted, her allegaitions of physical abuse by
A'^A : of their child in conunon, and eole le^ and phyncal custody of that child

ST/60

39Vd

10 A H I W J AlO X3SS3

Fsf 4Qidildii aiod Ofdti*

umi^M with th. wreng


m 1. eonitont with Ac^^ ^
tiitimony that foo^ took m iteps to M vdih hr son's drug us wh@n
they iU resided togith#r, ThibihiviorofOr)*^'$; oldest son during much
of the time this proceeding has been pending, including his open drug use
md defiance offoc^ris' rules, and th child's poor i^latioaship vdth frvom's
other son, are problematic for th child to reside primarily in mt nfs heme,
Also, after relocating with th child to Tupper X^ke in Januazy, she
failed to continue the child's schooling, When i^i>m and Brown both
appeared befbr this Court on January 10**', this Court offered to issue the
temporary order of protection so as to allow mi^m. and all of the children,
except for c^c^uA^^ ion who was then placed in Brown's temporary
custody based upon inaccurate and subsequently unsubstantiated claims,
to reside in the Mineville, New York residence and continue in the Moriah
school district. vM&m declined that offer, representing to this Court that
she would be going to Tupper Lake, which this Court inferred meant that
day, P^cifY^"^ decision to leave da^V, was not made on the spur-of-themoment. Rather, she and (^c^^ had discussed separating for
approximately one month before January 10, 2014, and ryiov^n had also
discussed it with the grandmother. Furthermore, the testimony of n^t.*in
regarding her association with Brown indicates that she and Brown had,
to some degree, planned the events of January 10*^ befbrehand. Yet, she
made no plans for continuation of the subject child's education and it does
not appear at all that she considered the impacts upon any of her children
from her relocation. This lack of judgment and plannmg resulted In the
subject child not receiving education- for the remainder of the school year
and a progressive deterioration of her oldest son's behavior and drug
abuse, For many of these same reasons, ^ c\K is better able to provid
for the child's emotional and intellectual development.
As to the relative fitness of the respective parents, (VTCY^ is less fit
than: di-d to be the custodial parent. In addition to the facts outlined
above, >(*)c\y> took dad '5 ' son to the pediatrician without .cXatVs
knowledge or permission in order to obtain a new medication for the
child's behavioral disorder. She informed the pediatrician that the then
prescribed medication, Strattera, was not working on the child and she

9T/0T

39Vd

ID

Alimd

AID X3SS3

9S9ee/L8BTS

90: II

fX0S/iI/II

Fsp40-Sesiiisn mi

requested a aew medicatioB, The pedlatrielan prescribed Ceneerta, wMeh


t>ncn^ accepted without telling the pediatrician that WLoA^ J would not be
infovorof that medication. She then proceeded to have the prescription
mied ind then inform the pediatrician of ac\:$. objection to that new
medication. When the pediatricisn's o0ce inlsrmed her that she needed
to bring the Ooncerta medication to the office for disposal, she responded
that she had already disposed of the medication, a claim which could not
b iubitantlated. Similarly, whea*^' "'"^^ moved to Tupper Lake la January
she took ^ixd' ^ son's Strattera medication with het*. When considered
against the backdrop of j^e/n'g prior subitance abuse history with these
types of medications, her actions and judpienti are suspect, to say the
least. Her deception on this Court in order to obtain a temporary order of
custody, her lack of credibility at trial, and the foregoing conduct involving
a child not her own, compels this Court to conclude that 'cAt^'vA^ is the
morefltparent.
"Priority in custody dilutes should usually be given to the parent
who was first awarded custody by the court or to the parent who obtained
cuitodyby voluntary agreement (^^iii3ii#/i^-.E v. Victoria B., 148 A,D.2d
362, 264, 532 N.Y.S.2d 176; Richman v. Biclmaii, 104 A,D.2d 934, 935,
480 N,Y.S.2d 551; se& also Friederwitzer v. Friaderwitsser, 55 N,Y.2d 89,
94, 447 N.Y8.2d 893, 432 N,E.2d 766)" JWhitB v. H^azzBlla^Whita, 84
A.D.3d 1068,1069,924 N.Y.S.2d418,419-420 [2d Dept., 2011]). However,
"where the first award Is the result of a stipulation... it is entitled to leas
weight than a disposition after a plenary trial" (Matter of parlJ.B. v.
Dorothy T.. 186 A.D.2d 736, 787, 589 N.Y.S.2d 63, 64) because "[n]o
agreement of the parties can bind the court to a disposition other than that
which a weighing of all of the factors involved shows to be in the child's
best interest (People ex rel. Wasserberger v. Wasserberger, 42 A,D.2d 93,
95,345 N.Y.8.2d 46, aifd on opn. belowZ4, N.y.2d 660,355 N.Y.S.2d 580,
311 N.E.2d 651)" (Friederwitzer v. FriederwitmT. 65 N.Y.gd 89, 96, 447
N.Y,S.2d 893,896,432 N.E.2d 765,768). This factor also fkvors Fleming.
Simply put, *V)i>rY) failed to establish by the preponderance of the
credible evidence that the October 2011 custody order should be modified
so as to award her primary physical custody of the child or sole legal

9T/TT

iO A I I W J AlO X3SS3

Kseeieexs

90:11

DMeidfl mi

Of4^

custody, This Court disigroii vidth tht reoommtndttion of tht attorney


for thi child, Such rtcommendatioa is hastd upon the attom^'s
ecceptanee of tY^i-'Ti s testimony, which this Court found to be lacking in
believability. Moitofthe attorney's arguments are address^l above. The
attorney's aisertlon that ir^em was the primary parent while the parties
cohabited is iniufAcient to justify a change in custody. No proof was
offered of the number, dates and times of any n^icsl or dental
appointments or of T dc^A^^ i availability to attend them, The fact that
Ickc^ik was not there does not establish that he abandoned the ehM. If
olac\s working, then it is reasonable that he was not there, Atm
all, they were livinf as a family unit and where one parent Is working and
another is not, It often happens that the non-working parent takes chUdr'en
to such appointmintg.
This Court recognizes that the return ofth child to I'dacl ^ will be
disruptive and oonftising to the child, "That a change in custody may
prove temporarily disruptive to the children Is not determinative, for all
changes In custody are disruptive" (Mshra v. Uhlar. 43 N,Y.2d 242, 249,
401 N,y.a2d 168, 171, 372 N,B.2d 4, 7 [1977]). However, It is In the
child's best interests that OoA liav primary physical custody. This is
particularly so since vwc(r*\*$> actions here, by reason of her false and
deceptive allegations at the outset of this case, wrongfUUy interfered with
dl>c\ o relationship with the child. **[S]o jealously do the courts guard
the relationship between a.., parent and his child, that any interference
with it by the [other] parent has been said to be 'an act so inconsistent
with the best interests of the children as to, per se, raise a strong
probability that the [offending party] is unfit to act as custodial parent.'
(EntwMe v, Entwiatle, 61 A.D.2d 380,384-38fi, 402 N.Y.S.2d 218 [RABIN,
J.], app. dsmd. 44N.Y.2d 851,)" CDsfhirv.Dae-hlr, 82 A.D.2d 191,194,441
N.Y.S.2d 494,496, afSnnedBG N.Y.2d 936,453 N.Y.8.2d 609,439 N.E.2d
324 [1982]).,
D,
The only "real" and ''definite" need to modify the October 2011
order proven by the credible evidence involves lvi.m's parenting time,

ST/ST

3Dtfd

ID A l I W J AID >aSS3

9S9Eei88T9

90:11;

fT02/iT/IT

DsmiQn tnd Order

ntmtly, that supervised parenting time is net justified er appropriate,


Impiementstion ofunsupervised parenting time will be 6ompli0ated by her
laok of transportation imd the almost one and one-half hour ene-wi^ travel
time between her current residence and that of
> Although she
testified that she has no driver's license due to an alcohol-rekted
conviction, it is unclear whether she Is still without such a license by choice
or is prohibited fi-om obtaining one. I>A<AV ' modification petition only
seeks restoration of the October 20X1 order.
The October 2011 order is modified so as to provide lY^ommth
unsupervised parenting time to consist, at a minimum of three (3)
wetlands per month, to occur on the first, second and fourthfiillweekends
of each month. A **Ml weekend of each month" means that both Saturday
and Sunday of a weekend fall in the same month. M<5m.'s parenting time
shall begin on Friday at 4:30 p.m. until the Sunday immediately thereafter
at 4:00 p.m. (unless the child does not have school on the Monday after
such weekend in which event her parenting time shall be extended to such
Monday at 4:00 p.m.). Since the parties have been able to agree on sharing
parenting time during the child's school recess and holiday periods, no
change in that provision shall be made. The parties shall also have equal
access and rights to all health care and educational records of the child and
shall be permitted to attend all school meetings, functions and events
involving the child as well as all health care appointments other than
behavioral health appointments in which the child has a right of
confidentiality. The parties' rights of custody and visitation are as follows:
1. David
and Christy
axe hereby awarded
joint legal custody of the child.
2. David i
j is hereby awarded primary physical custody
of the child.
3. Christy
_:i shall have reasonable and liberal parenting time
with the above-named child, to consist at a minimum, of the foUowe;
(a) parenting time on the first, second and fourth full

9I/ET

^Vd

'iO A l l W d AID X3SS3

4.

5.

6.
7.

8.

SI/t?T

39Vd

and Qtim
'wmkmii of ivtry month, each weekend to eommenoe
on Friday 4:B0 pM, and continue until the Sunday
immediately thereafter at 4:00 p.m. (unless the child
does not have school on the Monday alter such
weekend in which event the parenting time shall he
extended to such Monday at 4:00 p.m.; and
(b) such other and different parenting time as the parties
may mutually agree.
Except as ms^ be otherwise agreed between the parties,
transportation of the above-named child for exchange between the
parents shall be as follows; the parent who is to receive the abovenamed child for parenting time shall pick the child up at the other
parent's residence or at such other location as the parties may
agree,
The child shall have reasonable, liberal and age-appropriate
communication by teleQ[)hone or other electronic or written means
with one parent when the child is physically with the other parent,
and the child shall be allowed to engage In private unmonitored
communications.
The parties shall share parenting time with the child during the
periods during which the child's school is in recess, including for
holiday and summer vacation periods, the same to be agreed
between the parties.
During her parenting time, Christy
. shall cooperate with
and insure that the child engages in all school, extra-curricular and
other activities, programs and events in which the child is involved,
and she shall not in any respect interfere therewith. She shall also
support and encourage the child's participation in such activities,
programs and events.
The parties shall have equal access and ri^ts to all health care and

10 AllWVd AiO X3SS3

9S9eei88TS

90: I t

1>10Z/LI/U

Dedddn md Order

B.

@dugati@njil r@@srds of thi child and ghall be permitted to attend all


school meetinp, lunctione and events involving the child as well as
all health care appointments other than behavioral health
appointments in which the child has a ri^t of confidentiaWty.
The foregoing terms and provisions shall supercede and replace all
prior orders, flnil and traportry, of thii Court,

PURSUANTT0SECTI0N11130FTHBFAMILYC0URT
ACT, AN APPEAL FROM THIS ORDER MUST BE
TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER
BY APPELLANT IN COURT, 35 DAYS FROM THE DATE
OF MAILING OF THE ORDER TO APPELLANT BY THE
CLERK OF COURT, OR 30 DAYS AFTER SERVICE BY A'
PARTY OR THE ATTORNEY FOR THE CHILD UPON
THE APPELLANT, WHICHEVER IS EARLIEST.
C^der awiJled on [ipeclfy date() Andtowhom mailed]: M ' U T ^ I ^ J X ^
Order received In court on lapecify, dated) and to whom givenj:

cc:

SI/ST

39Vd

Bryan Liam Kennelly, Esq.,


Debra A. Whitson, Esq. ?J^Cs^ ujj?
Omsbanti H. Parnes, Esq. '-^
David
Christy" *" '

iO A l I W W AiO X3SS3

{)^,^s/

9S9Eei88IS

90: II

fT03/iI/II