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Jamtlii (Enurt afH^t BUU

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fork

For the County of Essex

Submitted September 26, 2014

Decided November 20, 2014

File No.: 6768 Docket Nos.: V-00134-14, V-00135-14, V-00136-14 V000137-14, V-00138-14, V-00139-14

JAMES

Petitioner-Respondent,

- against -

AMANDA

Respondent-Petitioner.

Decision and Order

Erin E. Hayes, Esq., Chestertovm, New York, for Amanda

DebraA. Whitson, Esq., Elizabethtown, New York, for James

David E. Rudgers, Esq., Ticonderoga, New York, Attorney for the Children.

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Petitions by James "

Decision and Order

'

( the "father") and Amanda

^ (the "mother") against each other for custody and visitation of the

children Gabriel 01/25/2010) and Trinity

(d/o/b - 01/25/2010), Isaiah (d/o/b - 02/17/2012).

,

(d/o/b -

A trial of the issues was held on September 25*^ and 26'^, 2014 at which three witnesses plus the parties testified. A Lincoln hearing {Lincoln v. Lincoln. 24 N.Y.2d 270,273-274,299 N.Y.S.2d 842,247 N.E.2d 659) of the children was not conducted due to the young age of the children and the representations of counsel and the parties that such a hearing would not provide any relevant information. This Court has assessed the character, temperament, and sincerity of the parents, and evaluated the credibility of the parents and other witnesses based upon their demeanor, the manner in which they testified, and the consistency, accuracy and probability or improbability of their testimony in light of all other evidence. The facts determined from the credible evidence are set forth throughout this decision and order.

A.

The parties are the married parents of three children, two twin sons (G. and I., born January 25, 2010) now 4 years old, and a daughter (T.), born February 17, 2012), age 2. The parties were married on September 1,2009 in the town of Ticonderoga, Essex County, New York. At the time of her marriage, the mother had a 3 year old son (J.) from another relationship, and the father was serving in the United States Navy, stationed at Norfolk, Virginia on the U.S.S. Harry S. Truman. Following the ceremony, the parties moved to Norfolk, Virginia where they resided until October, 2012 when the father was honorably discharged from the service. While stationed in Norfolk, Virginia, the father was often serving tours of duty aboard his assigned vessel, and the mother was at home with her child. His tours of duty could range from three days to one month, and on one occasion he served a seven month deployment. The mother's son J. also resided wit h them and she encouraged J. to call the father "Daddy" and similar names.

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Decision and Order

In August 2012, while the mother was in the Hague, New York area

visiting her parents with the children, she was notified by the father that he was being discharged. By agreement between the parents, all three boys (J., G. and I.) were left with the maternal grandparents, and the mother and T. returned to Virginia to assist in packing up their belongings for relocation. The parties agreed to move to the Hague, New York area and, while they lived with the mother's parents, the father would seek

essentially

employment. While living in the maternal grandparents home -

a one-bedroom residence - the grandfather slept on the only bed in the

house in the bedroom, the grandmother slept in a chair, the father and the

mother slept on couches, and the four children slept on the floor.

From November 2012 until mid-February 2013, the father sought employment in the area. The parties agreed that he would look for work on the east coast from Maine to Florida, and when he obtained employment they would move to that location and not move again. The mother testified that this search area was acceptable to her since i t

involved only a one day's drive to her parents home in Hague, a claim that

is belied by the fact that Florida is approximately 1200 miles distant and

not a one day drive. The father not only sought employment on his own,

but he used the services of employment recruiters as well. The father had

a number of interviews throughout the northeast but was unsuccessful.

He also applied for employment at the International Paper Company Mill

in TimndRrngfl^ NP W York anri

had^npJnt.RKviejgLtb£re-h]jijio4^^

As the father's unemployment benefits began to run out in January, 2013, the parties discussed the father's lack of employment, that they were running out of options, that he was not getting anywhere with obtaining employment in this area, and that the father knew he could find work in Texas, where he lived before his enlistment and where his parents presently reside. The mother insisted that the father not leave for Texas to seek employment there until after T.'s first birthday on February 17,

2013. She also encouraged him to seek employment outside of his

specialized field of training, such as by working at Walmart or McDonalds, even though his military training qualified him for employment at a significantly high salary level at which the family could be comfortably

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supported. No evidence was submitted that employment in an unskilled position at Walmart, McDonalds, or any similar employer was available to the father during the relevant times in issue.

The father and the mother discussed his moving to Texas. The mother knew that if he did move there and obtain a job that the father's

family would give them land upon which they could build a house. The mother admitted tha t she agreed to that situation but stated she did not want to move to Texas. Prior to the father leaving for Texas on February 18,2013, the mother never told him that she would not go to Texas under

any circumstances.

time the father left Hague, New York on February 18, 2013 to go back to Texas and obtain employment there, the mother had given him every indication that if he found a job there the mother and the children would move to Texas even though that was not where the mother wanted to be. During the time that the parties, resided with the mother's parents, they had scant marital discord, the only disputes being overfinancesand living in overcrowded conditions.

Rather, the evidence clearly establishes that at the

Upon arriving in Texas, the father moved in with his parents in Elgin, Texas. Within approximately one month the father obtained a job as a field service engineer with Schneider Electric, a global energy company, and told the mother. When he informed the mother of his good ihrtune^sheJjoldJiimJihat-shejsrauM were thus to forego the job in Texas and move back to the mother's parents home with no job prospects or income. Recognizing his duty to support and provide for his children, the father accepted the job with Schneider and tried to work things out with the mother. He suggested that she and the children come to Texas to check it out. The mother flatly refused.

The father was sent by his employer for training at its facility in Rhode Island during April and/or May 2014. At about the same time, the mother obtained employment as a steward in housekeeping at the Sagamore Resort in Bolton Landing, New York. Her work location is a 45 minutes drive one-way from her parents' home. The father asked the mother to bring the children for a weekend visit, offering to put her and

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_

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the children up at a hotel or motel and pay the travel expenses. The mother refused, her excuse being that she needed to transport a co-worker to work and tha t she could not afford the trip . No excuse was provided by the mother that the trip would not be in the children's best interests. Moreover, at that time, the father was paying the mother child support of $100 per week, the mother admitted having take-home pay from her job of $200-$300 per week, and she was living with her parents so she had minimal living expenses. The mother did not deny the father's testimony that he offered to pay her travel and lodging expenses, or that she asked him if her co-worker (Jeff) could come too, only stating that she could not recall one way or the other.

Once back

in Texas, the father's employment was i n the Houston

area and he secured an apartment in that area. He gave up that apartment once he started paying $257.00 per week in child support to the mother

with the children. The

father made several efforts to convince the mother to come to Texas and try it out for a couple of weeks, or a couple of months, or even just over the

Christmas 2013 holiday period. The mother refused to go because she did not want to leave her family. Although the mother testified that she believed that the father would renege on his agreement to allow her to go back to New York if it did not work out in Texas, the Court did not find this testimony to be credible since no evidence was provided from which any inference could be drawn that the father would prevent the mother from returning to New York with the children or that he had the ability to do so. There was no evidence of any controlling or abusive behavior by the father against the mother, other than her testimony that during his military service he handled the finances when he was not on his ship. Even that testimony fails to establish any controlling behavior by the father inasmuch as the mother testified that they were experiencing financial problems during that time and she was handling the finances while the father was deployed.

and i t was clear that she would not move to Texas

When it became clear to the father that things did not work out between the parents, the father commenced an action for divorce in Texas. Upon being served with those papers, the mother commenced a custody

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proceeding under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) in the Family Court of Warren County, New York, where she was residing at that time. Subsequently, she moved to an apartment i n Ticonderoga, Essex County, New York and the case was transferred to this Court. Similarly, the father filed his own UCCJEA custody petition with the Warren County Family Court in February, 2014, and that petition was also transferred to this Court. While the cases were pending in Warren County Family Court, that Court conferred with the Texas Court presiding over the divorce action and after confirming their jurisdiction over the custody issues, it was agreed between the courts that the custody issues would be heard in in New York, rather than Texas. Because the mother is living in Ticonderoga, in Essex County, the proceedings were transferred to this Court.

The father has attempted to maintain contact with the children. He built a computer and sent it to the mother so that he could video chat with the children using Sk3^e or a similar service. The mother accepted the computer but complained that she could not afford internet service despite earning approximately $300 per week in take-home pay plus receiving $257 per month in child support from the father. Meanwhile, the mother is able to afford her cigarette habit, has no child care expenses for the children since she uses her mother to watch the children, and her parents provide food for the children while in their care.

The children spend substantial time in the care of the maternal grandmother both when the mother is working and when the mother is engaging in off-work activities. For the period of September 1-25, 2014, the children had spent up to 9 overnights with the grandparents out of a total of 24 days. The mother's work schedule includes every weekend and at present is generally from 8:00 a.m. until 4:00 p.m. Considering the travel time of at least 45 minutes to and from work, the mother drives the children from her apartment in Ticonderoga to her mother's home in Hague to drop the children off by approximately 7:00 a.m., and she proceeds from there to work. She returns at approximately 5:00 p.m. On occasion she is required to be at work by 5:30 a.m., and on those days the children are left the previous night at the grandparents' home in Hague.

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When the mother is working, the grandmother gets the child J. on the school bus in the morning and is responsible for being present when he is returned later that afternoon. During holiday periods and the summer months, she works a minimum of 40 hours per week.

The maternal grandmother not only watches the three subject children and the mother's son J., but she also takes care of two other female grandchildren who are 6 and 2 years of age. When the children arrive at her home, they remove all of their clothes except their underwear and that is how they spend their day. When inside the home, the children watch TV or play with toys. Outside, there is a trampoline without any netting or fencing to prevent a user from falling or being propelled off. The grandparents have considerable property on which there is a barn and a fenced-in pond. No evidence was submitted indicating that the children are exposed to any type of age-appropriate educational media or instructional activities (i.e., reading, numbers, etc.). Moreover, the mother failed to get the children G. and I. enrolled in the local Headstart program, and had no reasonable excuse for such failure, her excuse being that her work prevents her from getting the children to and from the Headstart program in Ticonderoga.

The grandmother is overwhelmed by the responsibilities of caring

for so many young, active children.

Both twins are "active", "very busy"

boys. On September 3, 2014, the four year old child I. left her home unnoticed, clothed only in his underwear, and walked down the long driveway to a major two-lane highway and then approximately six tenths of a mile to a local fire station. He was observed by fire department personnel running around the parking lot at approximately 12:00 noon. He had no shoes and was dirty. He did not know his last name. He told the EMT who found him that he was going to get bubble gum at the store. The Warren County Sheriff was notified, and 45 minutes to an hour later a deputy sheriff took the child into custody and eventually returned him to the grandmother. The response of the mother and the grandmother was that the child was at fault, there being testimony from the investigating child protective services worker that both of them told her that the children knew the rules that they are not allowed to go past the woods or

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the truck on the property.

Despite knowing that the children suffer from respiratory problems irritated by cigarette smoke, and being advised by the children's doctor that they should not be exposed to secondhand smoke, both the mother and the grandmother smoke cigarettes around the children though they try to do so only outdoors.

No evidence was submitted regarding the mother's apartment in

Ticonderoga or of the activities i n which she engages with the children

when she is not at

past year or so, the last, one terminating shortly before trial. It is unknown what parental guidance she provides to the children, what (if any) efforts she makes to teach them appropriate behavior, whether she reads to the children or exposes them to age-appropriate educational materials and content, or otherwise performs the duties of a parent. Significantly, the mother broke down into tears while testifying that when she was living with the father in Virgina she felt that she was responsible too much of the time for parenting the children due to the father's deployments. From the

credible evidence i t is

work. She has had two romantic relationships i n the

apparent that the mother has not been performing

even the minimal duties of a custodial parent. Her desire to move from Virginia to Hague, New York was in no small part based upon her mother being available to assume a significant role in supervising the children. Whjle the father was living with the rnother in Hague, he spent a considerable amount of his time searching for employment. The mother's aversion to moving to Texas with the father and her use of the grandmother as the primary child-rearing figure stem, at least in part, from her not wanting the burden of a custodial parent.

The mother offered no explanation for living i n Ticonderoga and working 45 minutes away i n Bolton Landing, and no evidence was presented of her attempts to find work i n Ticonderoga so tha t she could parent the children and insure that they attended Headstart. Similarly, she offered no explanation or evidence as to why she did not move to Bolton Landing for the same results.

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B.

"An initial custody determination is controlled by the best interests of the child, taking into consideration such factors as the parents' ability to provide a stable home environment for the child, the child's wishes, the parents' past performance, relative fitness, ability to guide and provide for the child's overall well-being, and the willingness of each parent to foster a relationship with the other parent {see Matter of Lynch v. Gillogly, 82 A.D.3d 1529, 1530, 920 N.Y.S.2d 437 [2011]; Matter of Torkildsen v. Torkildsen, 72 A.D.3d 1405, 1406, 900 N.Y.S.2d 193 [2010])" {Rundall v. Rundall 86A.D.3d 700, 701,927 N.Y.S.2d 414,416 [3d Dept., 2011]). The Court must also consider "'the effect that an award of custody to one parent might have on the child's relationship with the other parent' {Bliss V. Ach, 56 N.Y.2d 995, 998, 453 N.Y.S.2d 633, 439 N.E.2d 349)" {Youngv. Young 212 A.D.2d 114, 118, 628 N.Y.S.2d 957, 960 [2d Dept., 1995]). Additionally, "[t]he Family Court was required to consider the parties' support obligations and their compliance with court orders {Domestic Relations La w§240[l][a][4]) and to evaluate each party's ability to support the child {seeEschbach v. Eschbach, 56 N.Y.2d 167,172,451 N.Y.S.2d 658, 436 N.E.2d 1260)." {Wissink v. Wissink. 301 A.D.2d 36, 40-41, 749 N.Y.S.2d 550, 553 [2d Dept., 2002]).

Since the father is seeking custody here, the effects of relocation of the children must be considered. "Consideration of 'whether the relocation of the child would negatively affect the fundamental right of reasonable access of the parent left behind' clearly is essential {Matter ofMessier v. Messier, supra, at 159, 638 N.Y.S.2d 242)" {Bodrato v. Bisgs. 274 A.D.2d 694, 696, 710 N.Y.S.2d 470, 472 [3d Dept., 2000]). "[E]ach relocation request must be considered on its own merits with due consideration of all the relevant facts and circumstances and with predominant emphasis being placed on what outcome is most likely to serve the best interests of the child. While the respective rights of the custodial and noncustodial parents are unquestionably significant factors that must be considered {see, Strahl v. Strahl, 66 A.D.2d 571, 414 N.Y.S.2d 184, affd 49 N.Y.2d 1036, 429 N.Y.S.2d 635, 407 N.E.2d 479, supra), i t is the rights and needs of the children that must be accorded the greatest weight, since they are

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innocent victims of their parents' decision to divorce and are the least equipped to handle the stresses of the changing family situation." (Tropea V. Tropea. 87 N.Y.2d 727,739,642 N.Y.S.2d 575,580, 665 N.E.2d 145,150 [1996]). "[I]n all cases, the courts should be free to consider and give appropriate weight to all of the factors that may be relevant to the determination. These factors include, but are certainly not limited to each parent's reasons for seeking or opposing the move, the quality of the relationships between the child and the custodial and noncustodial parents, the impact of the move on the quantity and quality of the child's future contact with the noncustodial parent, the degree to which the custodial parent's and child's life may be enhanced economically, emotionally and educationally by the move, and the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements" (Tropea. supra., at 740, 642 N.Y.S.2d at 581-582, 665 N.E.2d at 151-152). "Additionally, the parties' agreed-upon geographical relocation restriction must factor into a best interest analysis [citation omitted]" {Grathwol v. Grathwol 285 A.D.2d 957,958, 727 N.Y.S.2d 825,827 [3d Dept., 2001]). "In the end, it is for the court to determine, based on all of the proof, whether i t has been established by a preponderance of the evidence that a proposed relocation would serve the child's best interests [footnote omitted]" (Tropea. supra.).

C.

The children here are too young for their wishes to be considered or given any weight. I n considering the ability of each party to provide a stable home environment for the children, the Court is mindful that the "[c]hildren need a home base." {Braiman v. Braiman. 44 N.Y.2d 584, 589, 407 N.Y.S.2d 449,451, 378 N.E.2d 1019,1021 [1978]). For these children, that home base is the grandmother's home, not the mother's apartment for which no evidence was presented. The father, who currently resides with his parents, has sufficient space for the children to reside with him until he obtains his own residence. Both parents are employed, though the father earns significantly more than the mother. He has the financial ability to obtain his own residence and provide a stable home for the children.

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The parties' past performance, relative fitness, ability to guide and provide for the child's overall well-being, and willingness to foster a relationship with the other parent, all favor the father. Here, the mother reneged on her agreement to relocate to Texas if the father obtained a job in that state\g spent many months seeking employment in the Ticonderoga area and beyond without success, the father left for Texas with the understanding from the mother that she and the children would follow him there if and when he obtained a job. At no time before he left for Texas or prior to his obtaining employment in Texas did the mother inform the father that she would not follow through with her agreement to relocate to Texas. The mother's reason for refusing to relocate to Texas

was based upon her personal desire to remain with her own family. Significantly, the mother did not consider the best interests of the children, and no claim was made by her nor evidence presented at trial that it would not have been in the best interests of the children to relocate to Texas where the father was employed. By putting her own interests ahead of those of the children, the mother deprived the children of a family unit and a relationship with the father. "[T]he right to raise one's children and to be with them, are '(r)ights far more precious than property rights' (May v. Anderson, 345 U.S. 528, 533, 73 S.Ct. 840, 843, 97 L.Ed. 1221, supra). Such rights are 'deemed "essential"' (Stanley v. Illinois, 405 U.S. 645,651,

92

S.Ct. 1208,31 L.Ed.2d 551, ciimgMeyerv. Nebraska, 262 U.S. 390,399,

43

S.Ct. 625, 67 L.Ed. 1042; see, also. Planned Parenthood of Cent.

Missouri V. Danforth, 428 U.S. 52, 90, 96 S.Ct. 2831, 49 L.Ed.2d 788 {Stewart, J., concurring))" {Entwistle v. Entwistle. 61 A.D.2d 380,384,402 N.Y.S.2d 213, 215 [2d Dept., 1978]). A custodial parent must be "able . to place the children's needs before his [or her] own needs" {Lichtenfeld V. Lichtenfeld. 4 1 A.D.Sd 849,850,838 N.Y.S.2d 660, 662 [2d Dept., 2007]; see, also, Lohmiller v. Lohmiller 140 A.D.2d 497, 528 N.Y.S.2d 586 [2d Dept., 1988]; Janecka v. Franklin, 150 A.D.2d 755, 542 N.Y.S.2d 206 [2d Dept., 1989]). A "custodial parent must be able to place the child's needs

The mother's testimony that she wanted the father's job search to be within an area limited to one day's driving distance from Hague, New York, is belied by her admission that she agreed that the father could look for work on east coast as far away as Florida, which is more than a one day drive.

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first while fostering a continued relationship between the child and the noncustodial parent {Lohmiller v. Lohmiller, 140 A.D.2d 497, 498, 528 N.Y.S.2d 586 [1988])" {James JosephM. v. RosanaR. 32 A.D.3d 725, 726, 821 N.Y.S.2d 168, 170 [1^' Dept., 2006]). "[S]o jealously do the courts guard the relationship between a noncustodial parent and his child that any interference with it by the custodial 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.' {Entwistle v. Entwistle, 61 A.D.2d 380,384-385,402 N.Y.S.2d 213 [RABIN, J.], app. dsmd. 44 N.Y.2d 851.)" {Da^hirv.Daghir 82 A.D.2d 191, 194,441 N.Y.S.2d 494, 496, affirmed56 N.Y.2d 938,453 N.Y.S.2d 609,439 N.E.2d 324 [1982]). The mother unjustifiably interfered with the children's relationship with the father. She had no reasonable explanation or excuse for failing and refusing to move to Texas with the father. Her assertion that the father should have stayed and accepted employment at McDonalds, WalMart or some similar low-wage job just because she wanted to remain in the area is unreasonable. Both parents have an obligation to provide the best life possible for the children, which requires that they seek employment commensurate with their talents and abilities.

The mother further interfered with the children's relationship with the father when she refused to bring the children to Rhode Island where the father was receiving training for his job. Despite the father's offer to pay the expenses for travel, lodging and meals, the mother wrongfully refused for the reason that she felt obligated to drive a co-worker of hers to their workplace, the Sagamore Resort in Bolton Landing, New York. She also unreasonably refused to bring the children to Texas at Christmas

or for a couple of weeks to see

The mother's purported fear that she would not be allowed to return to New York has no basis in the evidence at trial. Thus, the mother violated the rights of the children and the father to visitation with each other. "A noncustodial parent is entitled to meaningful visitation, and denial of that right is so drastic that it must be based on substantial evidence that visitation would be detrimental to the welfare of the child {see Matter of Sinnott-Turner v. Kolba, 60 A.D.3d 774, 775,875 N.Y.S.2d 512; Matter of Morash v. Minucci, 299 A.D.2d 486, 749 N.Y.S.2d 889)." {Lane v. Lane, 68

i f she and the children

would like i t there.

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A.D.3d 995,996-997,892 N.Y.S.2d 130,132 [2d Dept., 2009]). "Visitation is a joint right of the noncustodial parent and of the child" (Weiss v. Weiss. 52 N.Y.2d 170, 175, 436 N.Y.S.2d 862, 865, 418 N.E.2d 377, 380 [1981]), and "the best interests of a child lie in [her] being nurtured and guided by both of [her] natural parents" (Dagliir v. Daghir. 82 A.D.2d 191,193, 441 N.Y.S.2d 494, 496, afiirmed56 N.Y.2d 938, 453 N.Y.S.2d 609, 439 N.E.2d 324 [1982]). The development of a meaningful, nurturing relationship between a noncustodial parent and his or her child requires that "visitation must be frequent and regular" (Baghir v. Dagliir. id.).

The mother also wrongfully refused to arrange for internet service to her apartment so that the father and children could communicate with each other via video chat, such as Skype. The father has been making his child support payments of $257.00 per week, and the mother has sufficient financial means to pay for internet service. He also gave the mother a computer to facilitate such contact. Yet, there was no evidence of any effort, or inclination, on her part to have the children communicate with the father by such means, or any other means.

Since the father's relocation, the mother has chosen to utilize the maternal grandmother as her surrogate. The mother provides no parental guidance or modeling, she has not provided for their education, and has left it to the maternal grandmother to be the primary caregiver for the children. This, along with the mother's testimony that she found i t difficult to care for the children while the father was at sea durin g his naval career, and that she wanted to stay in the Ticonderoga area because her family was there, establishes to this Court that the mother is simply not prepared or interested in being the primary parent and caregiver for the children. She made no reasonable effort to have the two older children enrolled i n any educational program and, disturbingly, the four year old child I. was unable to provide the emergency personnel at the fire station with his real first or last name. There was no evidence that the mother or grandmother read to the children or exposed them to any age-appropriate educational and character-building materials or information. Based upon the credible evidence, the children's lives will be significantly enhanced economically, emotionally and educationally by the move. The father will

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provide the parental guidance, nurturing and support that the children

need. He will insure that the children's educational needs are met. He has

for the children's needs. A n award of

custody to the father will most likely to serve the best interests of the children.

the financial ability to provide

This Court recognizes that the award of custody of the children to the father will be disruptive and possibly confusing to the children, and will substantially change the dynamics of the children's relationship with the mother. "That a change in custody may prove temporarily disruptive to the children is not determinative, for all changes in custody are disruptive" {Nehra v. Uhlar. 43 N.Y.2d 242, 249, 401 N.Y.S.2d 168, 171, 372 N.E.2d 4, 7 [1977]). There was little evidence that the children have a close relationship with the mother, likely due to the maternal grandmother's substantial assumption of the parenting duties. The quality and quantity of actual time spent by the children with the mother is unclear. However, the evidence did show that the children not only spend most of their days with the maternal grandmother but a number of overnights per week as well. While there will certainly be a negative effect upon the relationship between the children and the mother by an award of custody to the father, the effect can be minimized to the extent possible by affording the mother the right to visit and communicate with the children in Texas, as well as engage in significant visitation with them throughout the year here in New York. Although there was scant evidence of the relationship between the children and their half-sibling, any disruption of those relationships will similarly be assuaged by the visitation arrangements. Moreover, while the quantity of time between the mother and the children will certainly decrease, the quality hopefully will improve by the change.

However, for the reasons previously mentioned in this decision, it is in the children's best interests that custody be awarded to the father. Their lives will be enhanced by the change of custody as the father will perform his role as parent, the children will be provided with appropriate education and parental guidance, and they will be in a stable, nurturing environment. As between the mother and father, the children's best

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interests will be optimally promoted by an award of custody to the father. Since the relationship between the parents is strained, and due to the geographical distance between them, an award of sole legal custody must be made.

D.

The father's petition for custody is granted. The mother's petition, insofar as she seeks an award of legal and physical custody of the children, is denied. By reason of the forgoing, the rights of the parents to custody of and visitation with the children are as follows:

1. Sole legal custody of the children is awarded to the father.

2. Primary physical custody of the children is awarded to the father, and transfer of custody should take place no later than Friday, November 28, 2014 at or before 12:00 noon, eastern time.

3. The mother shall have reasonable and liberal parenting time (visitation) with the children as follows:

(A) i n odd-numbered years, the mother shall have parenting time with the children:

(1)

during the children's November school recess for the Thanksgiving holiday, from the Wednesday immediately prior to Thanksgiving Day until the Sunday immediately thereafter, provided that the children arrive at their respective airport destinations not later than 5:00 p.m. on such days; and

(2)

during the children's February school recess for President's week, from the Sunday immediately following the beginning of the school recess until the Saturday immediately

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thereafter, provided that the children arrive at their respective airport destinations not later than 5:00 p.m. on such days; and

in even-numbered years, the mother shall have parenting time with the children:

(1)

during the children's December school recess for the Christmas/New Year holiday, from the second day after the school recess begins until December 30*, provided that the children arrive at their respective airport destinations not later than 5:00 p.m. on such days; and

(2)

during the children's March/April school recess for the Easter holiday, from the Sunday immediately following the beginning of the school recess until the Saturday immediately thereafter, provided that the children arrive at their respective airport destinations not later than 5:00 p.m. on such days; and

Commencing in 2015 and continuing each year thereafter, during the months of June, July and August of the children's summer recess from school, the mother shall have i n each month one week of parenting time from Sunday to Sunday, with the children to arrive at their respective airport destinations not later than 5:00 p.m; with the mother

to notify the father each year in writing of such weeks

not late r tha n May

an unreconcilable disagreement either party may apply to a court of competent jurisdiction to resolve the dispute. The first week of the mother's parenting time shall commence no earlier than one week after school summer recess starts and the second week of

year, and i n the event of

1^' i n any

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Decision and Order

the mother's parenting time shall conclude no later than the earlier of one week before summer recess ends or fall school activities (i.e., sports) begin; and

(D)

provided that the mother gives the father at least ten (10) days notice, the mother shall have parenting time as agreed between the parties whenever she shall be within one hundred (100) miles of the children's primary residence, with such parenting time to occur within such geographical area as long as the children do not miss school or other previously scheduled school or extracurricular activities; and

(E)

such other an different times as the parties may mutually agree.

4. All airfare transportation expenses for the children under paragraphs 3 (A), (B) and (C) shall be shared by the parties in the same proportion as each parent's income bears to the combined parental income to the same extent as such amounts are to be determined for child support purposes. Such amounts may be determined in an appropriate proceeding for child support, and the same may be collected and enforced in the same manner and to the same extent as child support, including but not limited to providing for the collection and enforcement thereof through the applicable child support collection units of the respective jurisdictions. Each party shall be solely responsible for travel expenses from their respective residences to the nearest public airport from which airline service is available to the public airport nearest the other parent's residence. Each parent shall use his/her best efforts to secure airline tickets for the children at the lowest possible cost. No child under thirtee n (13) years of age shall trave l on any airline unaccompanied by a parent or other adult (one adult can accompany all or more than one of the children), and the travel expense for a party or other adult to accompany the children on any flight shall be paid by the party traveling with the children or arranging for

Page -18-

Decision and Order

another adult to do so, with each parent being responsible for the children to be accompanied on the flight to their respective home airport.

5. The children shall have one telephone call or video chat with the mother and their half-sibling J. on Sunday, Tuesday and Thursday of each week when they are physically with the father, the same to occur between 6:30 p.m. and 7:00 p.m. central time. When the children are with the mother, they shall be entitled to telephone or video chat with the father every other day between 6:30 and 7:00 p.m. central time. Nothing herein shall prohibit either parent from allowing the children to telephone or video chat with the other parent or with their half-sibling J. at other times when the children so desire.

6. The parents shall cooperate in arranging for visitation between the children and their half-sibling J. when the mother is exercising her parenting time and at other reasonable times.

7. Each parent shall: (A) have complete and unrestricted access to all health care and educational records, information, providers and personnel involved with the health care and/or education of the children, except for that which is protected by a right of confidentiality in favor of the children; (B) sign any and all releases or other documents necessary to permit the other to have such access; and (C) be listed with all health care and education providers as the primary parties to be contacted in the event of an emergency and to receive all records and information from such providers with respect to the said children.

8. The parties shall comply with and follow all treatment recommendations made by the children's health care (medical, behavioral, dental, etc.) providers. The mother shall not seek health care for the children without the father's prior consent except in the case of an emergency, and i n such event she shall immediately notify the father who shall, in consultation with the attending

Page -19-

Decision and Order

health care providers, determine the appropriate care and treatment of the children.

9. Neither party shall use or consume tobacco products in the presence of the children, nor shall they expose the children to secondhand smoke in the home, car or other place, nor shall they allow any third party to do so.

10. Each parent:

(A)

shall keep the other informed of their current residence address and telephone numbers at all times; and

(B)

shall speak in positive terms about the other parent in the presence or hearing of the children, and ensure that third parties do so as well; and

(C)

shall encourage and promote a feeling of love, affection and respect between the children and the

other parent;

(D)

shall encourage and promote the free exercise of visitation and custodial rights of the other parent with the children; and

(E)

shall immediately notify the other in the event of any

serious illness of,

or injury to, the children while i n

their care, as well as plans for medical, mental health, and dental examinations and/or treatment; and

(F)

shall administer any and all medications prescribed for the children while in their care; and

(G)

shall engage in and maintain reasonable, respectful, courteous and adult communication with each other regarding the children; and

(H)

shall maintain free access and unhampered contact between the children and the other parent; and

(I)

shall not discuss any adult issues with the children, including but not limited to court proceedings, custody, visitation or child support; and

(J)

shall not say or do anything that may alienate the

Page

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Decision and Order

child from the other parent, injure the children's opinion of the other parent, or in any way impair the children's love, affection or respect for the other parent, nor shall either parent allow any third party to do SO:

11. This Court does not retain exclusive, continuingjurisdiction within the meaning of the UCCJEA, and a court of another state otherwise having jurisdiction under the UCCJEA may modify and/or enforce the provisions of this decision and order.

It is so ordered.

ENiER

'.'''l'^ '^'''-^

''"^^^

\

Hon. Richard B. Meyer.

¥h^i'V(cmm

„.j

PURSUANT TO SECTION 1113 OF THE FAMILY COURT

ACT,

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.

AN APPEAL

FROM

THIS

ORDER

MUST BE

Checjjr applicable box:

5P€5rder mailed on [specify date(s) and to whom mailed]:_il. OtMiXl' ^

• Order received in court on [specify date(s) and to whom given]:

O

! \

\\

cc:

. Erin E. Hayes, Esq. "^X^p U 31 | David E . Rudgers, Esq. '—^ Amanda James

Debra A. Whitson, Esq.

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