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f o p ih@ O m i n t y of
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,
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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
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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
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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.
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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
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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
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4.
5.
6.
7.
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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
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Dedddn md Order
B.
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:
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