Jamtlii (Enurt afH^t BUU nf^m

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.

Page -2Decision and Order

Petitions by James "

' ( the "father") and Amanda
^ (the "mother") against each other for custody and visitation of the
children Gabriel
(d/o/b - 01/25/2010), Isaiah
, (d/o/b 01/25/2010) and Trinity
(d/o/b - 02/17/2012).
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 with them and she encouraged J. to call the father "Daddy"
and similar names.

Page -3Decision 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
employment. While living in the maternal grandparents home - essentially
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 it
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^ N P W York anri had^npJnt.RKviejgLtbre-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

Page -4Decision and Order

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 that 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. Rather, the evidence clearly establishes that at the
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.
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

Page-5-

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Decision and Order

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 that 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 in 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
and it was clear that she would not move to Texas 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.
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

Page-6-

..
Decision and Order

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 in 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.

Page -7Decision and Order

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

Page -8Decision and Order

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 in which she engages with the children
when she is not at work. She has had two romantic relationships in the
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 it is 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 in Ticonderoga and
working 45 minutes away in Bolton Landing, and no evidence was
presented of her attempts to find work in Ticonderoga so that 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.

Page -9Decision and Order

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 w240[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), it is the rights and needs
of the children that must be accorded the greatest weight, since they are

Page -10Decision and Order

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 it 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. In 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.

Page -11Decision and Order

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. 41 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.

Page -12Decision and Order

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 if she and the children would like it there.
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

Page-13Decision and Order

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 it
difficult to care for the children while the father was at sea during 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 in 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

Page -14Decision and Order

provide the parental guidance, nurturing and support that the children
need. He will insure that the children's educational needs are met. He has
the financial ability to provide for the children's needs. An award of
custody to the father will most likely to serve the best interests of the
children.
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

Page -15Decision and Order

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)

in 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

Decision and Order

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 in 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 later than May 1^' in any year, and in the event of
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

Page -17Decision 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

4.

(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.

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 thirteen (13) years of age shall travel 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 -18Decision 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 in such event she shall immediately
notify the father who shall, in consultation with the attending

Page -19Decision 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 in
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 -20Decision 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, continuing jurisdiction 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(cmmTO SECTION
.j
PURSUANT
1113 OF THE FAMILY COURT
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.
Checjjr applicable box:
O ! \ \\
5P5rder mailed on [specify date(s) and to whom mailed]:_il. OtMiXl'^
Order received in court on [specify date(s) and to whom given]:

cc:

Debra A. Whitson, E s q . v
.
Erin E. Hayes, Esq.
"^X^p U 3 1 |
David E. Rudgers, Esq. '^
Amanda
James