CHAPTER 7 CUSTODY Decisions of Interest

CHAPTER 7 CUSTODY

Decisions of Interest

The New York Court of Appeals has addressed the question of the constitutionality of New York's grandparent visitation statute, which has been looming since the United States Supreme Court's 2000 decision in Troxel v. Granville , 530 U.S. 57. The decision in Matter of E.S. v. P.D. finds the statute constitutional as applied. Grandparent visitation is discussed on page 210 of the textbook.

. E.S. v.P.D. --- N.E.2d ----, 2007 WL 470389 (N.Y.), 2007 N.Y. Slip Op. 01336 READ, J.

We are asked to decide whether the grandparent in this case was properly granted visitation with her grandson pursuant to section 72(1) of the Domestic Relations Law, and, if so, whether this provision is constitutional in view of the United States Supreme Court's decision in Troxel v. Granville (530 U.S. 57 [2000] ). For the reasons that follow, we conclude that section 72(1) was followed here, and is constitutional, both on its face and as applied.

I. A.D. (mother) married P.D. (father) in 1992; their son C.D. was born in November 1993. In June 1997, A.D. was diagnosed with cancer of the breast and spine. A.D.'s mother E.S. (grandmother), who lived in East Hampton, Long Island, was asked to move into the marital home in Huntington to care for her terminally ill daughter and the child. Grandmother cleaned the house, shopped, cooked household meals and looked after the child when A.D.'s illness prevented her from doing so.

After A.D.'s death in March 1998, father invited grandmother to stay on to help out with the then four- year-old child's care and household duties. Grandmother agreed, and father, grandmother and the child lived together amicably in the Huntington home for the ensuing three and one-half years. During that time, grandmother comforted, supported and cared for the motherless child. She got him ready for school, put him to bed, read with him, helped him with his homework, cooked his meals, laundered his clothes and drove him to school and to doctor's appointments and various activities, including gym class, karate class, bowling, soccer, Little League baseball and swimming class. She arranged and transported him to away- from-home or supervised at-home play dates; she took him to the public library and introduced him to the game of chess. From 1998 through 2001, the child and father spent entire summers at grandmother's home in East Hampton, where the child's maternal first cousins and other family members were frequently present as well.

By the fall of 2001, the relationship between grandmother and father had begun to sour. The reasons for this are disputed, but father and grandmother apparently differed over such matters as how to handle the child's sometime unwillingness to eat the food prepared for him at mealtime, and how strictly to enforce his bedtime, his tooth brushing regimen, homework routines and the like. In general, grandmother seems to have been more indulgent than father, who consequently came to view her as sabotaging his parental authority and competing with him for control over the household and, more importantly, the child. On February 24, 2002 father demanded that grandmother move out of the Huntington home immediately. Grandmother claims to have been completely surprised by this turn of events. She strenuously objected to leaving without at least saying goodbye to the child, who was away on a play date at the time, but she ultimately bowed to father's wishes and left with most of her belongings.

For the next seven or eight weeks, father forbade any contact between grandmother and the child. From April through December 2002, father allowed sporadic visits, which were limited in length and tightly

© 2008 Cengage Delmar Learning. All Rights Reserved. supervised, and occasional telephone calls. According to grandmother, an incident in December 2002, when she experienced a four-hour wait for a scheduled visit with the child was the "last straw." She decided to seek judicial intervention, a decision that she characterizes as having been arrived at most reluctantly. Accordingly, in January 2003, grandmother, who was 78 years old at the time, commenced this proceeding pursuant to Domestic Relations Law § 72 and Family Court Act § 651 for an order granting reasonable visitation with the child, who was then nine years old. Father opposed grandmother's request, and cross- moved for an order prohibiting grandmother from any contact whatsoever with the child.

Supreme Court appointed a law guardian for the child and conducted a lengthy, multi-day hearing. Among the numerous witnesses who testified were grandmother, father, his mother and stepmother, and two of the child's former babysitters. Supreme Court also held an in-camera interview with the child in the presence of the law guardian, and considered the law guardian's report and recommendation. On December 1, 2004, Supreme Court granted judgment to grandmother, and ordered visitation according to a detailed schedule. Supreme Court concluded that "[a]lthough mindful of [father]'s right to rear [the child] as he sees fit, and of his stated concern that [grandmother] undermines his parental authority, the Court finds that he has failed to present any credible evidence warranting either the termination of the relationship between [grandmother] and [the child] or the imposition of restrictions on the right of visitation. Instead, the evidence in the record establishes the existence of a very close, loving relationship between [grandmother] and [the child], and that [the child]'s best interest is served by granting [grandmother] regular, unfettered visitation."

Upon father's appeal, the Appellate Division affirmed Supreme Court's judgment, but modified certain terms of the visitation schedule in deference to father's wishes, relying on Troxel. In response to father's constitutional challenge, the Appellate Division observed that "[c]ontrary to the father's contention, this Court has determined that New York State's grandparent visitation statute, Domestic Relations Law § 72 is not facially invalid under [Troxel ] even though it does not specifically require that parental decisions are to be given 'special weight.' Our visitation statute, narrowly drafted to only afford a grandparent standing to sue for visitation when a child's parent has died or where 'conditions exist which equity would see fit to intervene' ( [DRL] § 72) and additionally requiring that after standing has been conferred, that the grandparent establish why visitation is in the child's best interest, necessarily gives the parent's decision presumptive weight" (27 A.D.2d 757, 758 [2d Dept 2006] [citations omitted] ). The Appellate Division further rejected father's argument that Supreme Court abused its discretion in awarding visitation to grandmother.

II. Section 72(1) of the Domestic Relations Law states that "[w]here either or both of the parents of a minor child, residing within this state, is, or are deceased, or where circumstances show that conditions exist which equity would see fit to intervene, a grandparent may apply to [supreme or family court] and ... the court, by order after due notice to the parent or any other person or party having the care, custody, and control of such child, to be given in such manner as the court shall prescribe, may make such directions as the best interest of the child may require, for visitation rights for such grandparent or grandparents in respect to such child." Section 72(1) derogates from the common-law rule that "grandparents [have] no standing to assert rights of visitation against a custodial parent" (Matter of Emanuel S. v. Joseph E., 78 N.Y.2d 178, 180 [1991] ). The statute "rests on the humanitarian concern that [v]isits with a grandparent are often a precious part of a child's experience and there are benefits which devolve upon the grandchild ... which he cannot derive from any other relationship" (id. at 181 [internal quotation marks and citations omitted] ).

Section 72(1) "does not create an absolute or automatic right of visitation. Instead, the statute provides a procedural mechanism for grandparents to acquire standing to seek visitation with a minor grandchild" (Matter of Wilson v. McGlinchey, 2 NY3d 375, 380 [2004] [internal quotation marks and citation omitted] ). When grandparents seek visitation under section 72(1), the court must undertake a two-part inquiry. "First, [the court] must find standing based on death or equitable circumstances"; and "[i]f [the court] concludes that the grandparents have established the right to be heard, then it must determine if visitation is in the best interest of the grandchild" (Matter of Emanuel S., 78 N.Y.2d at 181).

© 2008 Cengage Delmar Learning. All Rights Reserved. But the courts should not lightly intrude on the family relationship against a fit parent's wishes. The presumption that a fit parent's decisions are in the child's best interests is a strong one. And while, as we made clear in Wilson, the problems created by parent-grandparent antagonism cannot be ignored, an acrimonious relationship is generally not sufficient cause to deny visitation. "It is almost too obvious to state that, in cases where grandparents must use legal procedures to obtain visitation rights, some degree of animosity exists between them and the party having custody of the child or children. Were it otherwise, visitation could be achieved by agreement" (Lo Presti v. Lo Presti, 40 N.Y.2d 522, 526 [1976] ).

Here, grandmother has automatic standing under section 72(1) on account of A.D.'s death. Further, record evidence supports the determination of the courts below that visitation between grandmother and the child is in the child's best interest. The father in this case is a competent parent, and Supreme Court was therefore properly "mindful" in the first instance of his right to rear the child as he saw fit. Supreme Court determined, however, that grandmother established "an extraordinarily close relationship [with the child] during the nearly five-year period that she lived with him and [father]." Further, grandmother "clearly appreciate[d] and respect[ed] the separate roles that she and [father] play[ed] in [the child's] life, and wishe[d] to improve her relationship with [father] for the sake of [the child]," and there was "no credible evidence in the record substantiating [father's] claim that [grandmother] [sought] to usurp his role as [the child's] parent." Supreme Court also found that father's complaints about grandmother's caregiving skills were "contrived" and his claims of ill will exaggerated and "tailored to raise the specter of family dysfunction." Supreme Court agreed with the law guardian's "determination that the relationship with [grandmother] [was] central to [the child's] well[-]being," and noted that the child, who is gifted, had "articulated a deep love for and attachment to" grandmother. The Appellate Division affirmed the trial court's findings of fact, and we may not revisit them (see Karger, Powers of the New York Court of Appeals § 13:10 at 489 [rev 3d ed] ["[F]indings of fact made by the nisi prius court which have been expressly affirmed by the Appellate Division and have the requisite evidentiary support are ... conclusive and binding on the Court"] ). In light of these factual findings, there is no reason to disturb the best-interest determination in this case. There was no abuse of discretion; the courts below correctly applied section 72(1).

III. Father contends that Domestic Relations Law § 72(1) is facially unconstitutional in light of Troxel. "A party mounting a facial constitutional challenge bears the substantial burden of demonstrating that in any degree and in every conceivable application, the law suffers wholesale constitutional impairment" (Matter of Moran Towing Corp. v. Urbach, 99 N.Y.2d 443, 448 [2003] [internal quotation marks and citation omitted] ). Moreover, the challenger "must surmount the presumption of constitutionality accorded to legislative enactments by proof beyond a reasonable doubt" (id. at 448 [internal quotation marks and citation omitted] ).

The Washington statute at issue in Troxel permitted " '[a]ny person' to petition [the trial court] for visitation rights 'at any time,' and authorize [d] that court to grant such visitation rights whenever 'visitation may serve the best interest of the child' " (Troxel, 530 U.S. at 60 [quoting Wash Rev Code § 26.10.160(3) (1994) ] ). In Troxel, paternal grandparents petitioned for visitation with their grandchildren pursuant to this statute. The mother did not oppose all visitation, but sought to limit it. The trial court awarded visitation to the grandparents, "settl[ing] on a middle ground" between what the grandparents requested and the mother offered (Troxel at 71). The intermediate appeals court reversed on statutory grounds and dismissed the petition. The Washington Supreme Court then affirmed on a different ground--that the statute was facially invalid under the Federal Constitution because it unconstitutionally infringed on the fundamental right of parents to rear their children.

The Supreme Court affirmed the petition's dismissal, while declining to hold the Washington statute unconstitutional on its face. Justice O'Connor's plurality opinion held, however, that "the application of [the statute] to [the mother] and her family violated [the mother's] due process right to make decisions concerning the care, custody, and control of her daughters" (id. at 75). The plurality considered it critical that there were no allegations or findings of the mother's unfitness as a parent because "so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that

© 2008 Cengage Delmar Learning. All Rights Reserved. parent to make the best decisions concerning the rearing of that parent's children" (id. at 68-69). As a result, "the decision whether ... an intergenerational relationship would be beneficial in any specific case is for the parent to make in the first instance. And, if a fit parent's decision of the kind at issue here becomes subject to judicial review, the court must accord at least some special weight to the parent's own determination" (id. at 70 [emphasis added] ).

The problem in Troxel was therefore not that the trial court intervened, but that it failed to employ "the traditional presumption that a fit parent will act in the best interest of his or her child" when it did (id. at 69). On the contrary, the trial court effectively applied a presumption in favor of grandparent visitation, placing on the parent "the burden of disproving that visitation would be in the best interest" of her children (id. [emphasis in original] ).

Reasoning from Troxel, we conclude that section 72(1) is facially constitutional. As Justice Altman aptly put it, section 72(1) "can be, and has been, interpreted to accord deference to a parent's decision, although the statute itself does not specifically require such deference. Further, [section 72(1) ] is drafted much more narrowly than the Washington statute [considered in Troxel]. If the United States Supreme Court did not declare the 'breathtakingly broad' Washington statute to be facially invalid, then certainly the more narrowly drafted New York statute is not unconstitutional on its face. In fact, the Court indicated that it would be hesitant to hold specific nonparental visitation statutes unconstitutional per se because 'much state-court adjudication in this context occurs on a case-by-case basis.' Troxel does not prohibit judicial intervention when a fit parent refuses visitation, but only requires that a court accord 'some special weight to the parent's own determination' when applying a nonparental visitation statute" (Matter of Hertz v. Hertz, 291 A.D.2d 91, 94 [2d Dept 2002] [internal citations omitted]; see also Matter of Morgan v. Grzesik, 287 A.D.2d 150 [4th Dept 2001] ). Courts in other states have likewise read their grandparent visitation statutes to encompass the constitutional protections necessary to safeguard parental rights (see Hiller v. Fausey, 904 A.2d 875, 887-888 [Pa 2006]; Estate of Thurgood, 144 P3d 1083, 1093 [Utah 2006]; Blixt v. Blixt, 774 N.E.2d 1052, 1060 [Mass 2002] ). Indeed, the plurality's decision in Troxel seemed to suggest that the Washington Supreme Court might have similarly chosen to interpret its statute more narrowly.

Finally, father also argues that section 72(1) was unconstitutionally applied in this case. We disagree. Unlike Troxel, the trial court here did not presuppose that grandparent visitation was warranted as the jumping-off point for factfinding and best-interest analysis. Instead, the court, emphasizing that it was "mindful" of father's parental prerogatives, employed the strong presumption that the parent's wishes represent the child's best interests, as our statute requires (see Troxel, 530 U.S. at 69). While this presumption creates a high hurdle, the grandmother in this case surmounted it: from the time the child was almost four until he was seven, grandmother was his surrogate, live-in mother. The court then properly went on to consider all of the many circumstances bearing upon whether it was in the child's best interest for his relationship with grandmother to continue--e.g., the reasonableness of father's objections to grandmother's access to the child, her caregiving skills and attitude toward father, the law guardian's assessment, the child's wishes-- before making a judgment granting visitation.

Accordingly, the order of the Appellate Division, insofar as appealed from, should be affirmed, with costs.

* * * Order, insofar as appealed from, affirmed, with costs.

Chief Judge KAYE and Judges CIPARICK, GRAFFEO, SMITH and PIGOTT concur. Judge JONES took no part.

In the following interesting and unusual decision, the Supreme Court judge assigned to

© 2008 Cengage Delmar Learning. All Rights Reserved. the matrimonial term in Kings County finds that the deployment of one parent on active military duty does not deprive the court of jurisdicition to proceed with the custody case. The court also discusses "homestate jurisdiction" in circumstances where the child resides on a military base in Korea, and further holds that the hostile and abusive relationship between the parents warrants a hearing concerning modification of the custodial provisions of their separation agreement.

Supreme Court, Kings County, New York. KCF, Plaintiff, v. TLSF, Defendant. 15 Misc.3d 1119(A), 2007 WL 1107973 (N.Y.Sup.), 2007 N.Y. Slip Op. 50764(U)

April 12, 2007.

Upon the foregoing papers, defendant mother moves for an order, pursuant to Military Law § 304, staying the instant matrimonial action on the ground that her current enlistment in the armed forces materially affects her ability to defend the action. Alternatively, defendant moves for an order, pursuant to CPLR 3211, dismissing the complaint on the ground that the court lacks both subject matter jurisdiction and personal jurisdiction over the defendant. Plaintiff father opposes the instant motion and cross-moves for the following relief: (1) temporary legal custody of the parties' minor child; (2) physical custody of the child each Monday, from the time he is dismissed from school, until the following Wednesday morning, when he is to be returned to his school and (3) physical custody of the child on alternating weekends, from Friday, when he is dismissed from school until Monday morning, when he is to be dropped off at school. He also requests that, in the event the court does not enter a stay of the action and defendant defaults, that an attorney be appointed to represent her pursuant to New York Military Law § 303(1) and the Servicemembers Civil Relief Act, 50 App. U.S.C.A. § 501 et seq.FN1

FN1. The court notes that plaintiff has also moved for leave to supplement his cross motion with various additional affidavits and documents. As the supplemental submissions in question appear to the court to be relevant and provide some additional background and clarification with respect to issues already briefed in some detail, and the defendant has had an opportunity to respond to the supplemental materials and is not demonstrably prejudiced by the submission of same, the court grants plaintiff's request for leave to supplement the record and has reviewed such materials in conjunction with the motion papers already submitted by the parties.

The parties were married in May 1998. They have a minor child who was born in the United States in January 2003. Both parties are enlisted members of the United States Army currently on active duty at the same army base located in the Republic of Korea, where they have been stationed since September 2003. On or about October 24, 2005, plaintiff commenced the instant divorce action. Prior to commencement of the divorce action, the parties executed a marital separation agreement, dated July 26, 2004, which was negotiated and prepared by their respective Judge Advocate General (JAG) attorneys. With respect to custody of the parties' child, the agreement states, in relevant part, that:

The custody of the minor child of the parties ... shall be shared jointly by Husband and Wife. The parties agree that although the child may reside with the Wife, both parties shall exercise joint care and control of the child and both parents may visit said minor at any and all reasonable times and places. The Non- Custodial Parent will provide 72 (seventy-two) hours notice before visitation. If less than 72 (seventy-two) hours notice is provided, the Custodial Parent will permit visitation if she/he is able to reasonably accommodate such visitation. The parties hereto represent and agree that the welfare of the child shall be the major factor governing all aspects of custody and visitation rights and it is further understood that nothing contained herein shall constitute an abandonment of the said child by either of the parties. The

© 2008 Cengage Delmar Learning. All Rights Reserved. parties agree to consult one another with regard to any and all major decisions affecting the health, education and welfare in the best interests of said child.

The Wife shall be referred to herein as the Custodial Parent. The husband shall be referred to as the Non- Custodial Parent. The Custodial Parent agrees to consult with the Non-Custodial Parent on such matters as major medical treatments and selection of schools for the child to promote the best interests of the child. The Custodial Parent shall exercise final determination over these matters.

The separation agreement also provides that the Non-Custodial Parent shall have the privilege, during visitation periods, to take the child home or on outings and excursions and with the Custodial Parent's prior consent, can visit the child in “heir”home. The parties also agreed to be flexible in their visitation arrangement, to endeavor to resolve all visitation conflicts in good faith and to “ake all reasonable efforts to accommodate the schedule of the other parent.”Moreover, “ailure to reach mutual accord on a requested adjustment shall not constitute justification for the Wife or Husband to delay delivery of the child beyond the above schedule” With regard to potential visitation disputes, the parties “eserv[ed] the right to petition a court of competent jurisdiction to resolve the issue with the goal of maximizing the time with both parents in order to carry out the intent of equal shared custody; provided, however, that no modification will be implemented unless both parties agree or a court of competent jurisdiction so orders.”

Subsequently, a “provisional Visitation Agreement”was drafted which sets forth a specific weekend visitation schedule for plaintiff. However, said agreement has not been executed by the parties and, by its own terms, states that such agreement, although meant to be “ guide to interpretation”of the subject separation agreement, is “n no way intended as a formal addendum, modification or revision of the signed, written agreement previously entered into by the parties.”

In an affidavit submitted in support of her motion to stay the instant action, defendant avers that her military orders require her to remain in Korea on active duty until September 2007, when she expects to return to the United States. Defendant further states that she currently is assigned to the (number omitted) Personnel Service Battalion under the immediate command of Lieutenant Colonel TJS. In further support of her motion, defendant submits an affidavit from Lt. Col. TJS which states the following with respect to defendant's availability to defend the instant action:

In this case, [defendant] will be unable to attend any proceedings of the court in this matter as a result of her military service because her military duties require her to serve her nation in Korea until at least September 30, 2007; and because there may not be necessary qualified personnel to cover down for her if she had to appear for Court in New York.

There are also several military exercises which may increase the amount of work within our unit and I need all Soldiers available to accomplish the unit's mission. In August 2006, there will be a military exercise known as UFL taking place in Korea. The dates are classified. [Defendant] will have to provide support to the installation and all service members in the exercise primarily as the Dining Facilities Specialist. In March 2007, there is a military exercise known as RSOI. The dates are classified. [Defendant] will ... carry out her mission primarily as a Dining Facilities Specialist. Army units in Korea are mostly understaffed and losing [defendant] to appear in Court in New York, may not only be cost prohibitive for her, but will also affect the armed forces member strength here in Korea. As a senior noncommissioned officer, [defendant] is a leader among the enlisted Soldiers. [Defendant's] absence from her unit from [sic] any prolonged period of time will possibly affect the operation of the dining facility. Also, [defendant] has informed me that dealing with the current matrimonial issues has been affecting her work and her personal life, and that she cannot adequately defend this case by going back and forth from Korea to New York.

[Defendant] will be unable to appear and protect her interests in this case, probably until at least 30 days after her departure from Korea back to the United States. Therefore, I understand that [defendant] is requesting a stay of all proceedings until such time as her ability to present a defense is no longer materially affected by her military service. Specifically, [defendant] asks the Court to stay this case until at least October 30, 2007. I understand that her attorney will present the matters regarding this stay in court.

© 2008 Cengage Delmar Learning. All Rights Reserved. In opposition to defendant's motion and in support of his cross motion for a modification of the existing custody arrangement contained in the parties' separation agreement, defendant submits an affidavit wherein he avers that New York is the appropriate forum for the instant action as he continues to maintain his residence in Brooklyn, his Brooklyn address is listed as his “home of record”in military documents, he pays New York state and city taxes and is registered to vote in New York. He further avers that it has always been his intention to return to Brooklyn “when [his] military service concludes.”

With respect to the court's jurisdiction to determine the instant custody dispute, he states that after the parties' child was born, the child temporarily moved to Florida with defendant when he was three months old, resided in Florida for less than six months and subsequently relocated to Korea when defendant was stationed there and joined plaintiff at the military base. Accordingly, plaintiff contends that since the child lacks a domestic home state and the Korean courts located where the child currently resides will most likely decline jurisdiction over the matter, the New York court, which has jurisdiction over the instant divorce action should also exercise jurisdiction over the subject custody dispute as “t is the only tribunal that can do so.”In support of this contention, plaintiff submits a letter addressed to the court from Captain JJC, an Army attorney allegedly “amiliar with the operation of the Courts of the Republic of Korea with regard to custody disputes,”which states, in relevant part, that “the Courts of the Republic of Korea generally do not hear or determine custody disputes between two parents, neither of whom are Korean nationals. The local court here would refuse to exercise jurisdiction to determine custody of [the child] because both his parents are United States nationals.”

Plaintiff also maintains that the parties' custody arrangement should be modified because defendant allegedly has failed to abide by the visitation terms contained in the separation agreement by refusing visitation unreasonably, interrupting visitation and initiating confrontational, antagonistic and violent incidents between the parties, some of which occurred in the presence of the parties' son. Specifically, he alleges that on January 24, 2005, defendant “ame to his place of duty and made a scene,”on March 25, 2005 she became “iolent and hysterical”at plaintiff's home while their child was in his care, causing the child to become fearful and cry, and “hen took [the child] against [plaintiff's] wishes and in contravention of [the] visitation schedule and promised that she would never let [plaintiff] see [the child] again.”He further avers that during a June 7, 2005 incident, he was physically assaulted by defendant in the presence of their child and that such incident formed the basis for a subsequent substantiated spousal abuse finding. Defendant also avers that, as a result of the parties' visitation disputes, “numerous military and command interventions have become necessary”and such disputes have caused “ great deal of disruption ... to both of our military commands.”

In support of his claims, plaintiff submits a copy of a “no Contact Order with spouse”which states that on June 7, 2005, plaintiff “and spouse had a domestic violence incident. It appears the incident was initiated and caused by his spouse. To ensure no escalation of the event occurs a no contact order is issued immediately and remains in effect until rescinded.”Plaintiff also submits a memorandum from Major SRA, which states that a multidisciplinary assessment was conducted with respect to plaintiff's allegations of spousal abuse which resulted in a determination of “[s]ubstantiated [s]pouse abuse of [plaintiff] by the spouse with Level 3 intervention.”It was recommended that the parties receive individual counseling, legal referrals with respect to their separation and divorce issues and undergo monitoring by their command as needed to facilitate their separation agreement, including visitation issues. Plaintiff also submits a letter from Lt. Col. TEB, a director of Public Affairs for the Army, which states that “it is the best interest of the U.S. Army that the matter concerning [the parties] be resolved as expeditiously as possible”and also notes that the parties “need their differences resolved to not only benefit the care to their son, but to allow them both to focus lost energy to their duties.”

Plaintiff also alleges that, despite several meetings between the parties and their JAG attorneys, Army social workers and members of the parties' commands, the disputes between the parties have not been resolved. He also states that on August 12, 2005, his commanding officer “required an escort to be present each time [d]efendant and I met to exchange [the child]”which has “reated a burden on [the parties] and the military.”Plaintiff further avers that the child has been residing exclusively with him since April 2006. Accordingly, he argues that he be awarded sole custody of the child so that the child's “legal status reflects the reality of the [physical custody] situation”and further maintains that the set visitation schedule he

© 2008 Cengage Delmar Learning. All Rights Reserved. proposes would diffuse any confrontations between the parties. Specifically, the visitation schedule would allow “pick-ups and drop-offs”to be at the child's school, so that the parties need not encounter each other, and its prearranged equal-time division of physical custody would eliminate disputes over when and how visitation would occur.

In opposition to defendant's cross motion for a modification of the parties' current custody arrangement, defendant contends that plaintiff has failed to demonstrate the requisite “changed circumstances”to warrant such modification. Defendant also argues that the court should “abstain from entertaining any issues of custody and visitation”since the parties' child has never resided in New York. Relatedly, defendant maintains that the court lacks jurisdiction over the parties themselves as they were not married within the State of New York and have never declared same to be their domicile.

In reply, plaintiff submits an additional letter from Lt. Col. TJS written in response to an inquiry from plaintiff's attorney as to defendant's availability for court appearances beyond the previously identified periods-namely August 2006 and March 2007-during which defendant would be rendered unavailable due to military necessity. The letter states, in relevant part, that:

[I] will take into account any scheduled court dates when determining if [defendant] will be able to take leave. While it is always difficult to be without a senior non-commissioned officer, I see no reason why the needs of my Battalion would prevent [defendant] from being able to take leave in order to attend a court hearing.

Subsequently, defendant submitted a sur-reply affidavit stating that there had been a change in her commanding officer and attached a letter from her new commanding officer concerning, once again, the availability of defendant to defend the instant divorce action in New York. Said letter, from Captain TB, states the following with respect to the defendant's availability:

In this case, [defendant] will be unable to attend [the] majority of the proceedings of the court in this matter as a result of her military service because her military duties require her to serve her nation in Korea until at least September 30, 2007; and, because there may not be necessary qualified military personnel to cover down for her if she had to appear suddenly for Court in New York. In the U.S. Army we are afforded 30 days of accrued leave per calendar year. However, this must be taken with enough prior advance notice to ensure proper coverage. In Korea, leave is not afforded liberally as in the Continental U.S., as only 10% of the unit may be off the island of Korea at any given time. There is also the issue of financial readiness, as the tickets to the U.S. are costly (around $1200) and taking several trips back and forth becomes a hardship on any Soldier.

In addition, a letter has been submitted to the court from Captain MBW, an Army trial counsel and the legal representative for defendant's commanders, which states the following with respect to defendant's availability to attend any necessary court dates:

There has been a great deal of confusion concerning the availability of [defendant] to appear before your court. Changes in [defendant's] chain of command have complicated the issue. The bottom line is that [defendant's] [c]ommand will not act as a shield to protect her form the jurisdiction of the State of New York. The needs of the Army are the foremost concern of the Commanders. The needs of the Army take precedence over the needs of the individual. However, the Army does not need to have [defendant] present in Korea at all times. Soldiers in Korea commonly take one to two weeks of leave each year, often traveling home to America or for a holiday in Asia. It was not the intention of Captain [TB-name omitted ] or of former commander [Lt. Col. TJS-name omitted ] to tell this court that she would be unavailable for an entire year.

There are still obstacles to allowing [defendant] to take leave. Soldiers of her grade do not exist in large numbers in her Military Occupational Specialty. She is a cook and has the training to run a large kitchen. During certain military exercise[s] when our kitchens work overtime she would not be available to leave the country. There may be other times when due to a temporary shortage of personnel her leave request would be denied. Finally, any Soldier typically needs to request leave time about two months in advance of

© 2008 Cengage Delmar Learning. All Rights Reserved. the leave in order to ensure they receive it. Even given her special skills, [defendant] should be able to take leave if given several months notice.

As an initial matter, the court finds that defendant is not entitled, pursuant to Military Law § 304, to a stay of the instant action. Section 304 provides, in relevant part, that:

At any stage thereof, any action or proceeding in any court ... in which a person in military service is involved as a party, during the period of such service or within sixty days thereafter ... in the discretion of the court ... shall, on application to it by such person ... be stayed as provided in this act, unless, in the opinion of the court ... the ability of ... the plaintiff to prosecute the action, or the defendant to conduct his [or her] defense ... is not materially affected by reason of his [or her] military service.

It is well established that although “[t]he purpose of this section is to protect those in the military from sacrificing their rights while serving their country”(Jusino v. New York City Housing Auth., 255 A.D.2d 41, 46 [1999] ), Military Law § 304 “was not intended to give a litigant, even though in military service, complete immunity from claims arising as a result of his [or her] civilian life and activities”and, therefore, should only “be used as a shield and not as a sword”(Isaacs v. Isaacs, 37 N.Y.S.2d 527, 527 [1942] ).

In deciding whether a soldier's ability to defend a case is materially affected by his or her military service, the court must determine whether such factors as the servicemember's geographical location or specific position or duties in the military prevents him or her from adequately defending the action in question (see Greco v. Renegades, Inc., 307 A.D.2d 71, 712 [2003] ). As a result, courts have generally looked to the servicemember's commanding officer for guidance with respect to whether the defendant is available to attend court hearings or otherwise participate in the active defense of the subject action (see Warshawsky v. Warshawsky, 215 A.D.2d 374, 375 [1995]; cf. Mirisoloff v. Monroe, 16 AD3d 1161, 1162 [2005][defendants' motion for a stay on the ground of military service, pursuant to the analogous federal statute in effect at the time, the Soldiers' and Sailors' Civil Relief Act of 1940 (50 USC Appendix § 501 et seq.), denied where they “ailed to submit a letter or other communication from (the) commanding officer stating that (defendant Monroe's) military duty prevent(ed) appearance and that military leave (was) not authorized for (defendant Monroe)”(internal quotation marks and citations omitted) ]; accord Corrado v. Harris, 13 Misc.2d 4, 4 [2006] ). Moreover, the mere fact that a servicemember is stationed overseas, without more, generally is insufficient to warrant the imposition of a stay pursuant to section 304 (see Pinkowski v. All-States Sawing and Trenching Inc., 290 A.D.2d 873, 873 [2002] ). Similarly, a stay will not be granted where it is established that the servicemember in question has the ability to utilize leave time to defend the action (see Fischer v. Keep, 231 A.D.2d 864, 864 [1996]; Matter of Theresa G. v. Eric L., 133 Misc.2d 414, 417 [1986] ).

In the instant case, the court finds that defendant has failed to demonstrate that her ability to defend the action is materially affected by reason of her current military service. Defendant has fully participated in the instant motion practice, which has expanded well beyond the parameters of her original motion seeking a stay, and although her counsel has stated that she is currently appearing for defendant solely on a “limited”basis, defendant currently appears to possess ready access to, and active communication with, her legal representative. Nor has she demonstrated that her future ability to either obtain or communicate with legal counsel or participate in motion practice as necessary will be materially affected by reason of her military service (see generally Guzman v. Warenda, 161 A.D.2d 1017, 1018 [1990] ).

In addition, to the extent the defendant shall be required to attend court hearings in the action, she has failed to establish that either her geographical location or military duties prevent her availability for such appearances to the extent that her defense of the instant action would be “materially affected”as defined by the relevant case law. Three separate letters from defendant's former and current commanding officers and the current commanders' legal representative have been submitted to the court confirming the availability of leave to defendant for the purpose of attending any court-ordered hearings which may be scheduled in this action. Although an initial letter from Lt. Col. TJS, defendant's former commanding officer, stated, in conclusory terms, that defendant “ill be unable to attend any proceedings of the court in this matter as a result of her military service because her military duties require her to serve her nation in Korea until at least September 30, 2007; and because there may not be necessary qualified military personnel to cover

© 2008 Cengage Delmar Learning. All Rights Reserved. down for her if she had to appear in Court in New York,”the letter only specified three time periods during which defendant would be conclusively unavailable, namely July 28, 2006, August 2006 and March 2007. The letter also noted that her absence for a “prolonged period”could adversely affect the Army's operations. Said letter did not address, however, the availability of leave to defendant for the purpose of attending court appearances scheduled in New York to the extent such appearances did not fall within the specifically proscribed time periods. Such omission was rectified in Lt. Col TJS's follow-up letter which stated that “[w]hile it is always difficult to be without a senior non-commissioned officer, I see no reason why the needs of my Battalion would prevent [defendant] from being able to take leave in order to attend a court hearing.”

The letter from Captain TB, defendant's current commanding officer, also acknowledges the availability of leave to defendant. Specifically, it states that members of the Army are afforded 30 days of accrued leave which “must be taken with enough prior advance notice to ensure proper coverage.”Accordingly, although Captain TB confirms that defendant would not be able to appear in court either on November 16, 2006 or for the “ajority of the court appearances”in the action and, in addition, coverage for her absence might not be available if she was required to appear “suddenly”in New York, she does not aver that defendant would be unable to utilize her accrued leave to attend a court appearance if said appearance was scheduled with sufficient advance notice, as Captain TB indicated was a necessary prerequisite to obtaining such leave. Moreover, Captain TB's conclusory statement that defendant would be unavailable for the majority of court appearances in the action is not probative on the issue of her actual availability given that the dates of such anticipated future appearances were unknown at the time the letter was written and other portions of the letter irrefutably affirm the availability of leave with advance notice.

Finally, a letter was also submitted to the court by Captain MBW, a legal representative for the commanders of defendant's company and battalion. The letter affirms that it was not the intention of defendant's commanding officers to represent to the court that defendant would be unavailable to appear in court in New York for an entire year. Rather, the letter states that “it is common for soldiers to take one to two weeks of leave a year”and “even given her special skills, [defendant] should be able to take leave if given several months notice.”As Captain MBW explained, “any soldier typically needs to request leave about two months in advance of the leave in order to ensure they receive it.”

Although defendant contends that Lt. Col. TJS's initial letter evidenced that leave was not available for her to attend court proceedings in New York, and Captain TB's letter allegedly has reaffirmed defendant's inability to appear, the court finds that such letters merely highlight the difficulties inherent in arranging for the temporary absence of a specially skilled enlisted member such as defendant. In addition, however, the letters explicitly posit a solution to such dilemma; namely, the request by defendant, with sufficient advance notice, for leave to attend a court hearing which has similarly been scheduled with adequate advance warning and sensitivity to any time periods specifically identified by commanders as unavailable. Moreover, defendant's contentions that plaintiff's superior military rank has somehow influenced the content of some of the letters submitted is wholly conclusory. The court notes that the letters themselves do not appear to be contradictory, as urged by defendant. Rather, Lt. Col. TJS, Captain TB and Captain MBW all agree that leave to attend court hearings is obtainable upon sufficient advance notice where there is no conflict with specific planned military exercises or other exigencies. Although Lt. Col. TJS's initial letter contained a blanket statement that defendant was unavailable to appear in New York for the duration of her service, the same letter only specifically identified a few time periods as absolutely “off limits,”did not explicitly address the issue of leave and was subsequently clarified by an additional letter which affirmed that prearranged leave with the requisite amount of notice could facilitate the defendant's appearance in New York for any necessary court proceedings.

In addition, to the extent that defendant argues that it was improper for plaintiff's counsel to contact Lt. Col. TJS or other Army officials with respect to the availability of leave for defendant, it has been held that a plaintiff is not precluded from applying directly to a defendant's commanding officer to arrange for defendant's appearance with respect to a pending action (Sardo v. Donnellan, 180 Misc. 611, 613 [1943] ). Accordingly, where, as here, the plaintiff's counsel merely sought clarification of the Army's leave policy and its applicability to defendant, the court does not find any impropriety sufficient to warrant its disregard of letters submitted from the defendant's superiors or other officials with respect to defendant's availability

Defendant has also stated that travel to the United States from Korea would be a financial hardship to her. However, defendant has not proffered any substantiation for this claim. Moreover, some evidence has been provided by plaintiff that no-cost military transport may be available to defendant. In addition, defendant is not precluded from seeking reimbursement of such costs and expenses based upon the alleged financial disparity between the parties upon a proper evidentiary showing.

Accordingly, the court finds that the letters submitted to this court by defendant's former and current commanding officers, as well as the legal representative for her current command, establish that defendant is able to request and receive leave to appear in court in New York upon appropriate notice to her superiors in the event her appearance becomes necessary during the course of the instant action. Moreover, there has been no showing that defendant has been impeded by reason of her military service from obtaining, or conferring with, counsel or fully participating in either initiating or responding to motion practice as needed. As a result, defendant's motion for a stay pursuant to Military Law § 304 is denied.

To the extent that defendant seeks dismissal of the instant action on jurisdictional grounds based upon plaintiff's alleged failure to fulfill the residency requirement contained in Domestic Relations Law § 230, such portion of her motion is also denied. DRL § 230(5) provides that a divorce action may be maintained where either party has been a resident of the state for at least two years immediately preceding the commencement of the action. Residency, for purposes of DRL § 230, has been held to be synonymous with “omicile,”which is provable by factors such as voter registration and payment of state taxes and “s not lost by temporary absences from the State, provided there is a corresponding intention to retain New York as one's domicile”(Unanue v. Unanue, 141 A.D.2d 31, 40 [1988] ). In the instant case, plaintiff avers that military documents list his home of record as Brooklyn, New York, and he has submitted other affidavit and documentary evidence demonstrating that he is registered to vote in New York, pays New York state and city taxes and recently voted in New York. Defendant has proffered no evidence refuting plaintiff's residency in New York and, at oral argument on the instant motion and cross motion, defendant's counsel stated that defendant would concede that New York was the plaintiff's domicile. In any event, it is well settled that “[t]he durational residency requirements [imposed by Domestic Relations Law § 230] are not a limitation upon the subject matter jurisdiction of the Supreme Court, but are merely substantive elements' of the matrimonial cause of action, which the plaintiff must allege and prove”(Unahue, 141 A.D.2d at 34; see also Lacks v. Lacks, 41 N.Y.2d 71 [1976]; Wilson v. Wilson, 176 A.D.2d 115 [1991]; Rubin v. Rubin, 73 A.D.2d 148 [1980] ). Accordingly, defendant is not entitled to dismissal of the instant divorce action on jurisdictional grounds.

With respect to plaintiff's cross motion for modification of the existing custody arrangement, the court also finds that it has jurisdiction over the custody issues in this action. The mere existence of jurisdiction for a divorce action does not automatically support a finding of jurisdiction with respect to custody as “hese issues [are] on different jurisdictional terrain”(Foley v. Foley, 170 Misc.2d 87, 89 [1996] ). Specifically, custody jurisdiction is governed by Domestic Relations Law § 76, which provides that a New York court only has jurisdiction to make an initial child custody determination if: [1](a) this state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as parent continues to live in this state; (b) a court of another state does not have jurisdiction under paragraph (a) of this subdivision, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under seventy-six-f or seventy-six-g of this title, and; (i) the child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and (ii) substantial evidence is available in this state concerning the child's care, protection, training, and personal relationships; (c) all courts having jurisdiction under paragraph (a) or (b) of this subdivision have declined to exercise jurisdiction on the grounds that a court of this state is the more appropriate forum to determine the custody of the child under section seventy-six-f or seventy-six g of this title; or (d) no court of any other state would have jurisdiction under the criteria specified in paragraph (a), (b) or

© 2008 Cengage Delmar Learning. All Rights Reserved. (c) of this subdivision; 2. Subdivision one of this section is the exclusive jurisdictional basis for making a child custody determination by a court of this state. 3. Physical presence of, or personal jurisdiction over, a party or a chid is not necessary or sufficient to make a child custody determination

“home state”is defined as “the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding”(Domestic Relations Law § 75-a). Moreover, in applying DRL § 76, “a] court of this state shall treat a foreign country as if it were a state of the United States”(Domestic Relations Law § 75-d; see also Randall v. Randall, 305 A.D.2d 512, 513 [2003][finding that DRL § 75-d barred New York courts from exercising jurisdiction over custody proceeding brought in New York since Costa Rica was properly construed as the child's home state where the subject child had resided in Costa Rica almost since birth and did not reside in New York for the requisite six month period preceding commencement of said action] ).

It is undisputed that the child resided in Korea for the six months immediately preceding the commencement of the instant divorce action and continues to reside in that jurisdiction. Although there is a dearth of case law on this issue, the plain meaning of the relevant statutes and the holdings of the few cases which have addressed same seemingly support the conclusion that a foreign country can serve as the “home state”of a child for jurisdictional purposes where said child has resided there for six months prior to commencement of the subject custody proceeding (see DRL § § 75-a, 75-d, 76; see also Randall, 305 A.D.2d at 513] ). However, where the child's home state, whether domestic or foreign, has declined jurisdiction, and no other state has a jurisdictional claim under DRL § 76(1)(a)(b) or (c), a New York court may exercise jurisdiction over the subject custody issues even if substantial evidence concerning the child's care, protection, training and personal relationships is not presently located in the state (see DRL § 76 [1][d] ).

In the instant case, plaintiff has proffered a letter from an Army attorney familiar with the Korean courts which states that such courts will refuse to exercise jurisdiction over a custody dispute involving two United States nationals. Defendant has failed to dispute this assertion. It is well settled that “[f]acts appearing in [a] movant's papers which the opposing party does not controvert, may be deemed to be admitted”(Kuehne & Nagel, Inc. v. Baiden, 26 N.Y.2d 539, 544 [1975][applying rule in summary judgment context]; accord Matter of S.L.K. v. P.J.B., 14 Misc.3d 1208[A][2006][applying rule in context of motion for blood examination in paternity dispute] ). Accordingly, given the uncontroverted position that Korea, the child's putative home state, would conclusively decline jurisdiction over custody in this case, the court must analyze its own jurisdictional authority in light of such declination. If the courts of Korea, upon presentation of a copy of this order, do take jurisdiction, this court would be inclined to defer to the court where both parties, the child and the allegations occurred. The fact that neither party disputes the allegation that the courts of Korea will not hear disputes relating to United States service members and no action was started by either party in Korea, lead this court at this juncture to believe that Korea would decline jurisdiction

In so doing, the court finds that it may exercise jurisdiction pursuant to DRL § 76(1)(d). Aside from Korea, the declining state, no state possesses both the requisite significant connection to the child and the child's parents and substantial evidence concerning the child's care, protection, training, and personal relationships as required by DRL § 76(1)(b)(i) and (ii). Section 76(1)(d), however, provides, in essence, a “safety net”for just such a situation, allowing a New York court to exercise jurisdiction where no other appropriate forum exists under DRL § 76(1)(a)(b) or (c).

In the instant case, the child has never resided in New York. However, his connection with any alternate jurisdiction in the United States is similarly tenuous. The record reveals that he was born in Oklahoma, moved to Florida with defendant in April 2003 when he was only three months old and, thereafter, moved to Korea approximately five months later in September 2003. Accordingly, although there is some evidence that defendant has a connection to Florida and may have resided there at one time, such connection is certainly no more significant than the plaintiff's connection to his New York domicile. Moreover, given the brief duration of the child's presence in Florida when he was less than one year old and his subsequent

© 2008 Cengage Delmar Learning. All Rights Reserved. absence from that jurisdiction for approximately three and one half years, the court finds that substantial evidence concerning the child's care, protection, training and personal relationships is not available in that jurisdiction. Accordingly, given the pressing nature of the parties' custody dispute, which shall be addressed within the instant decision, infra, and the absence of any viable alternative forum pursuant to the criteria mandated by DRL § 76(1)(a)(b) and (c), the court finds that it is authorized to exercise its jurisdiction over custody issues in this action pursuant to DRL § 76(1)(d). In doing so, the court recognizes the difficulty that will ensue in litigating a custody, domestic violence dispute involving members on active duty in the military so far away. The court also recognizes the important role of the military and the parties' primary responsible to serve our nation. Yet, the parties and the child when faced with allegations of domestic violence and strife must have a forum to seek civil legal redress.

Turning to the substantive custody modification issue, the court finds that a hearing is warranted with respect to plaintiff's cross motion for a modification of the current joint custody arrangement between the parties. “[W]here parents enter into an agreement concerning custody, it will not be set aside unless there is sufficient change in circumstances since the time of the stipulation and unless the modification of the custody agreement is in the best interest of the [child]”' (McNally v. McNally, 28 AD3d 526, 527 [2006], quoting Smoczkiewicz v. Smoczkiewicz, 2 AD3d 705, 706 [2005], quoting Matter of Gaudette v. Gaudette, 262 A.D.2d 804, 805 [1999] ); accord Matter of Rawlins v. Barth, 21 AD3d 495, 495 [2005], lv denied 5 NY3d 717 [2005]; Bobinski v. Bobinski, 9 AD3d 441, 441 [2004]; Thompson v. Thompson, 267 A.D.2d 516, 517 [1999] ). Stated differently, “[a]lthough the totality of the circumstances of the case and the best interests of the child are factors to be considered in all cases where modification of custody is sought, where the parties have entered into an agreement, the agreement is entitled to considerable weight and it is incumbent on the party seeking the change to show that in light of changed circumstances continued adherence to the agreement would not be in the children's best interests”(Steck v. Steck, 307 A.D.2d 819, 819 [2003][citations omitted]; accord Granata v. Granata, 289 A.D.2d 527, 527 [2001] ). Moreover, “[a] parent who seeks a change in custody is not automatically entitled to a hearing but must make some evidentiary showing sufficient to warrant a hearing”(Teuschler v. Teuschler, 242 A.D.2d 289, 290 [1997] ). In the event the party seeking modification is able to make the requisite evidentiary showing (Jackson v. Gangi, 277 A.D.2d 383, 383 [2000] ), the court must review, at the resulting hearing, a number of factors in considering whether the requisite change of circumstances exists and modification is warranted, including “the quality and stability of the respective home environments and each parent's past performance, relative fitness and ability to provide for and guide the child's intellectual and emotional development”(Thompson, 267 A.D.2d at 518 [internal quotation marks and citations omitted] ).

Equally important, where the parents have agreed to share joint custody of their child, is an evaluation by the court as to whether “the acrimony between the parties has increased to the point that it bars communication, creating a situation where it is proper to revisit the issue of custody”(Matter of Wiedenkeller v. Hall, 37 AD3d 1033, 2007 N.Y. Slip Op. 01460 [2007] ). This comports with the principle in this jurisdiction that joint custody is “nly appropriate where the parties involved are relatively stable, amicable parents who can behave in a mature, civilized fashion [and are] capable of cooperating in making decisions on matters relating to the care and welfare of the children”(Trolf v. Trolf, 126 A.D.2d 544, 544 [1987], lv dismissed 69 N.Y.2d 1038 [1987]; accord Braiman v. Braiman, 44 N.Y.2d 584, 589-590[1978]; cf. Matter of Morehouse v. Morehouse, 251 A.D.2d 710, 710 [1998][modification of parties' joint custody arrangement warranted where there was “ubstantial record evidence”of the parties' distrust of one another and inability to cooperate]; Laura A.K. v. Timothy M., 204 A.D.2d 325, 325 [1994][joint custody inappropriate where record before the court was replete with hostility and antagonism between the parties to a degree which indicated that they were unable to put aside their differences for the good of the child]; Matter of George W.S. v. Donna S., 187 A.D.2d 657 [1992] [same]; Cmaylo v. Cmaylo, 76 A.D.2d 898, 899 [1980], lv dismissed 51 N.Y.2d 770 [1980][joint custody deemed a “failure”by court where testimony at hearing indicated that major conflicts and hostility existed between the parties] ).

However, mere instances of hostility between the parties are not, in and of themselves, necessarily enough to demonstrate that changed circumstances exist which warrant modification of a joint custody arrangement, especially where the fitness of the parents is not in question, the child has a good relationship with the parents (see generally Janecka v. Franklin, 131 A.D.2d 436, 437 [1987]; lv denied 70 N.Y.2d 612 [1987] ) and no adverse effects to the child have resulted from the existing custody arrangement (see

© 2008 Cengage Delmar Learning. All Rights Reserved. generally Olimpia v. Steven M., 228 A.D.2d 270 [1996] ). In addition, at least one court has held that the modification of a joint custody arrangement did not have a sound and substantial basis in the record where such modification was based exclusively upon the inability of the parties to communicate with each other and there was no explicit finding that there had been a change in circumstances sufficient to warrant modification of the existing custodial arrangement previously established by agreement of the parties (see Marcantonio v. Marcantonio, 307 A.D.2d 740, 741 [2003][reversing grant of motion to modify judgment of divorce, which had awarded joint custody to parties in accordance with their stipulation to same, where the court found that even though parties undisputably had been unable to communicate with each other since the time they were initially separated, and plaintiff was prohibited by an order of protection from communicating with defendant except for the limited purpose of decision making concerning their children, evidence demonstrated that, under the joint custody arrangement, the children had nonetheless excelled academically, were socially well adjusted and the parties were both loving and involved parents capable of providing a good home] ). Moreover, discrete incidents of conflict or antagonism, occurring sporadically and without any demonstrable substantive effect on the child's well-being, are often most properly construed as “the ordinary type of bickering and conflicting behavior that estranged and divorced parents regrettably exhibit”(see generally Elizabeth T.L. v. Jeffrey C.L., 24 AD3d 270, 270-271 [2005] ) and do not warrant modification of a joint custody arrangement absent evidence that “the parties are so consumed with hostility, antagonism and disagreement that they are utterly incapable of engaging in the joint decision making to which they previously agreed”(Neuwirth v. Neuwirth, 12 Misc.3d 1171(A), at *3 [2006][denying motion for modification and declining to order a modification hearing where moving party merely provided evidence of sporadic conflicts between the parties which were not alleged to have affected the subject child's well-being] ). However, where evidence exists that the parties, despite their agreement to share joint custody, have “ecome so acrimonious since they entered into the ... agreement that joint custody [is] no longer a workable option”(Pambianchi v. Goldberg, 35 AD3d 688 [2006], such joint custody arrangement may become subject to modification. Of course, as noted by this court in Neuwirth, such modification might not result in sole legal custody being vested in one parent or the other, but may encompass any number of parenting arrangements deemed warranted by the court under the circumstances.

Here, plaintiff has submitted evidence of several hostile confrontations between the parties, allegedly instigated by defendant, including at least one incident involving physical violence which occurred in the presence of the child. Moreover, the domestic violence incident led to the issuance of a “no contact”order between the parties which admonished them not to contact each other “xcept thru attorneys, until further notice,”including any “contact via phone, e-mail, letters or any other form of communication, whether directly or through a third-party.”In addition, said incident resulted in a substantiated finding of spousal abuse of plaintiff by defendant. With respect to the incident, the chief of Social Work Services issued a memorandum noting that “t]he recent domestic dispute that involved Family Advocacy is very concerning and the fact that the child was present increased the risk of the situation.”It was also allegedly deemed necessary by the plaintiff's command that an escort be present when the parties exchanged their child for visitation. None of the incidents have been specifically denied by defendant, although she does argue that, to the extent hostility exists between the parties, it is limited solely to their relationship to each other and does not impact the well-being of the child or the current custody arrangement.

Although it is true that discrete incidents of hostility or antagonism between parents which do not appear to impact upon the well-being of the child generally are insufficient to warrant the modification of an existing custody arrangement-and may not even be adequate to support a hearing on the issue-the court finds that the instant allegations raise serious questions regarding the ability of the parties to communicate and cooperate effectively with respect to the current custody arrangement and, therefore, a hearing on plaintiff's motion for modification is appropriate. In fact, pursuant to DRL 240(1) and the Second Department's holding in Wissink v. Wissink, 301 A.D.2d 36, 749 N.Y.S.2d 550 (2nd Dept.2002), the court must consider the affects of domestic violence, if any, in making a custody determination. This is especially true given that the subject separation agreement vests the parties with joint custody of the child, allows them, with few specific guidelines, to “visit said minor child at any and all reasonable times and places”and explicitly obligates them to be flexible, accommodating and communicative with each other regarding visitation issues. The agreement also requires them “o consult one another with regard to any and all major decisions affecting the health, education and welfare”of the child. Given such terms, the agreement requires that the parties possess the unfettered ability to engage in open communication, cooperation and flexibility with

© 2008 Cengage Delmar Learning. All Rights Reserved. respect to issues impacting upon both visitation and the overall well-being of the child without such communication leading to hostile and violent confrontation. Although a “provisional visitation agreement”has been submitted to the court which allegedly evidences the parties' intent to provide a more stable and predictable weekend visitation schedule for plaintiff, it does not appear that such document has been formally executed by the parties, there is no evidence the parties have been adhering to such document and the document itself states that it is not intended as a formal modification of the separation agreement. Moreover, it is unclear whether the limited modification of the visitation schedule envisioned by such document would sufficiently resolve the problem of the alleged hostilities and communication difficulties between the parties, in light of the separation agreement's continued anticipation of a high level of communication, cooperation and flexibility between the parties with respect to all decision making concerning the child's well-being. Accordingly, on the record before it, the court finds that sufficient and serious questions have been raised, based upon the allegations of inadequate communication, hostility, antagonism and spousal abuse-including violent confrontations which allegedly have taken place in front of the child-to warrant a hearing on the issue of whether the custody arrangement currently in place should be modified in the best interest of said child. The court notes that, in the event a modification is deemed warranted after a hearing, such modification would not be limited to that sought by plaintiff, but rather could encompass any parenting arrangement the court determines to be appropriate based upon the findings gleaned from said hearing.

As a result, defendant's motion for a stay, pursuant to Military Law § 304, is denied. Plaintiff's motion for a modification of the existing custody arrangement between the parties as agreed to in the subject separation agreement is held in abeyance pending a hearing on the issue of whether such modification is necessary in the best interest of the child.

The court hereby orders that the attorneys shall appear in Part 5G on April 27, 2007, at 9:30 a.m., with their schedules and their client's schedules to set firm trial dates. The costs and expenses of defendant's travel and lodging shall be borne by defendant without prejudice to any motion by her seeking reimbursement of such costs and expenses from plaintiff upon a showing of financial need. Moreover, to the extent leave is available and authorized for defendant, but such leave cannot occur on the specific dates directed by the court, the court shall not cancel or stay the subject hearing, but rather shall adjourn and reschedule it to the earliest date that is deemed available by defendant's commanders or their legal representative.

The foregoing constitutes the decision and order of the court.

The following decision pertaining to contempt as a remedy for interference with visitation contains an interesting discussion of the distinction between civil and criminal contempt and the procedural prerequisites for the imposition of contempt sanctions.

H.W. v. J.F. Slip Copy, 2007 WL 1574420 (N.Y.Fam.Ct.Rockland County), 2007 N.Y. Slip Op. 51116(U) Unreported WILLIAM P. WARREN, J.

On October 20, 2006, this court signed an order to show cause directing the respondent, J.F. to show cause before the court why an order should not be issued granting petitioner an order adjudging the respondent in willful contempt and granting the petitioner an order of commitment and directing the respondent, pursuant to FCA § 454, to pay to the petitioner reasonable counsel fees in a sum to be determined at trial.

The petition alleged that an order was issued by this court dated July 1, 2005 which order provided for visitation between the respondent and his son, D. It claimed that in contravention of the order the respondent wrongfully and unlawfully withheld the child from the custody of the petitioner until August 31, 2006. The application states that it is brought for criminal and civil contempt pursuant to Judiciary Law §§ 750 and 753, CPLR 5104 and FCA §§ 453, 454 and 455. The respondent denied the allegations of a

H.W. testified that she is the mother of D. and J. Respondent, J.F., is the father of these children. In June of 2006, J.F. had brought an application before this court seeking permission to take D. to Israel during the summer of 2006. On July 18, 2006, the parties appeared in court at which time the issue of visitation during the summer of 2006 was discussed. Introduced into evidence was the transcript of the proceeding held on July 18, 2006. The court took judicial notice of the order of July 1, 2005 which was entered by the clerk on July 5, 2005. The July 1, 2005 order contained the following pertinent language: The visitation of the father with the children, J.F .... and D. F .... shall be at the children's discretion including but not limited to weekend, holiday, summer and school recess visitation; and it is further ORDERED that the father's summer vacation visitation shall be modified such that the summer visitation of the father in any year that the children attend summer camp shall be at the discretion of the children and shall include those days occurring between the close of the school year and the commencement of summer camp and two weeks in August; ......

The transcript of the July 18, 2006 hearing contained some colloquy pertinent to the instant application. During that appearance the respondent claimed that it was his understanding that the use of the phrase "at the discretion of the children" meant that the children could come and go as they wish in the summer, without regard to the visitation time frames set forth in the order. The following colloquy occurred:

The Court: Can I say what I think (I need) (should be you mean).

Mr. F.: Yes.

The Court: There will be no set visitation scheduled at all. It will be totally up to the children when they want to see you, whenthey don't want to see you. Is that it?

Mr. F.: Correct and that's the way it was except for August.

... Further on during the appearance of July 18, 2006, the following colloquy occurred:

The Court: Let me stop you one second, Mr. Sperber. The discretion goes with the set times, so your understanding is that there are set times, now, whether they be every other weekend, whether they be holidays or whatever, and that those times, Mr. F. is entitled to visit with the child, if the child agrees.

Mr. Sperber: Absolutely.

The Court: Beyond those times, there is no entitlement to visitation and Ms. W. retains the right to say no, you don't go; you know, this is not a scheduled visitation time. She retains that right.

Mr. Sperber: My understanding exactly, your Honor.

.... Several letters were sent by the respondent to the petitioner's counsel in June of 2005 in connection with the settlement of the order of July 1, 2005. Those letters objected to the proposed order submitted by the petitioner's counsel because the respondent claimed that the order should indicate that all visitation should be at the children's discretion and that "... the children can have visitation even during the mother's time ..." (see, Law Guardian's Exhibit 6, letter of June 1, 2005 from J.F. to Leonard Sperber). The order which the court signed was that submitted by the petitioner's counsel, not the counter-order of the respondent.

The petitioner testified that at the end of the 2005/2006 school year, D. had a trip to Washington, D.C. and it was arranged to pick him up at school in Livingston, New Jersey at the end of the trip. She picked him up and he came home and stayed until June 19. On that date, he went to visit his father. Thereafter, he went to summer camp on June 26 or 27th.

The petitioner said she was unable to have any contact with D. from June 19 until he went to camp even though she attempted numerous times to do so. While he was at camp, she had regular contact with him without difficulty. She next saw him on August 31, 2006. It was on July 27, 2006 when D. was on a bus on his way home from camp that Ms. W. last spoke to him before August 31, 2006.

During the period of time that D. was not in contact with her (the month of August) a scheduled bar mitzvah involving another child occurred during the weekend of August 26 and 27th. These plans had been made in December of 2005. D. knew of the bar mitzvah and he had a close relationship with the boy who was being bar mitzvahed, his step-brother JW.

From July 27th on Mrs. W. claimed she made numerous attempts to contact D. but always ended up with voicemail. She would contact Mr. F.'s telephone number and would leave a message but never got a return call. On August 21, she went to the Town of Ramapo Police Station and filed a complaint.

J.F. testified that although he received the application to hold him in contempt, the copy which he was given was not complete. The document was introduced into evidence as respondent's Exhibit A. The statutory warnings in bold print on the document apparently had been cut off in the copying and, therefore, several letters were not included. For example, the first line of the warnings read: "the purpose of this hearing is to punish y". Apparently, the letters "ou" were cut off. In the second line, the language read: "the accused, for contempt of court an' " but apparently the letter "d" was left off. There were one or two other letters left off from the warnings.

Mr. F. testified that he believed the order of July 1, 2005 which contained the language "at the discretion of the children," meant that whenever the children want to be with the father it was permissible for them to be there. He denied prohibiting D. from making a phone call during the summer to anyone.

Mr. F. testified that in July, 2006 he filed a petition in the Kings County Court because of D.'s assertion that he was refusing to go back to his mother.

During cross examination, Mr. F. acknowledged that he has, on prior occasions, filed a number of contempt motions himself and that he has the contempt language on his computer. He also acknowledged that he knew about the August bar mitzvah.

In August, he received a call from a detective about D. and he told the detective that D. was not missing but that he was there with Mr. F. Mr. F. acknowledged that D. remained with him during the entire month.

The respondent indicated that he filed for custody in Kings County on or about July 27. He stated that prior to filing he had numerous conversations with D. who told him he didn't want to go back to his mother. On July 18, in court, the respondent had indicated an intention to file for D.'s custody.

Mr. F. denied telling D. what to say in court on August 31, 2006 when D. appeared before this court, he denied telling D. to say that he would run away if he had to go home, and he denied telling D. to say that his mother tortured him. He also said that D. did not want to go his step-brother J's bar mitzvah. He maintained that D. had said he wouldn't go back to his mother and that he wanted to stay with Mr. F.. He was asked whether he had used any influence at all to try to get D. to stay with him and he completely denied using any influence. In fact, he stated that on a number of occasions he encouraged D. to go to his mother's house. He claimed that he told D. "you should go to your mother".

As a result of the testimony of J.F., it became quite obvious to the court that it would be necessary to hear from D.F. The court had met D. on several prior occasions and found him to be a shy yet intelligent, articulate young man who was under enormous pressure from the respondent to such a degree that at one point the court had to issue an order of protection against the respondent directing him to not have any contact with D.. These prior contacts with D. had occurred in the context of "Lincoln" style hearings. Because the nature of the instant application was contempt and as a result the consequences for Mr. F. could include a commitment to a correctional center, the court felt that it could not conduct a "Lincoln"

© 2008 Cengage Delmar Learning. All Rights Reserved. style hearing in this type of a proceeding even though the child was only fourteen (14) years of age. Therefore, it was arranged for D.'s testimony to be taken in one room where he would have with him his law guardian, but also present were the attorney for the petitioner and the attorney for the respondent, along with the Judge. His testimony would be broadcast electronically to the courtroom where the respondent would observe and hear D. testify.

D. told the court that he had a school trip to Washington, D.C. at the end of the school year 2006. He returned home to his mother and then went to stay with his father. From his father, he went to camp at the end of June and returned from camp approximately one (1) week before July ended. While at camp, he talked with both his mother and his father by cell phone.

After camp he returned to his father and told his father that he was going to his mother's on or about the 15th of August. A few days later, his father brought up the topic of living with him. D. said he didn't want to. He had no conversation with his father about running away from his mother, nor about her torturing him. He knew his father had filed for custody in Kings County. No one, including his father, tried to talk him out of living with his father. His father had the idea of drawing up a pros and cons list. Although he told his father he did not want to move in, he also did not want pressure from his father. His father took him to see a rabbi and his father and the rabbi tried to convince him to live with his father.

The next time D. saw his mother was on August 31. He had no communication with his mother at all in the month of August. He had some contact from J., his brother, but he didn't respond to J. because he was afraid of his father. He received no messages from his law guardian. He sent a few faxes to his law guardian, but his father had told him to do so.

He had a cell phone in August of 2006, but he testified that he had concerns about using the phone to call his mother and his law guardian. He claimed his father had told him not to pick up the phone and not to call his mother.

He said he was with his father most of the time in the summer. He said his father told him something bad would happen if he called his mother. With regard to the bar mitzvah of August 24 and 25th, he told his father he wanted to go, but his father said it would be best if he didn't go.

He met with a law guardian in Kings County in connection with his father's custody petition. He told her that his mother was bothering him and that he was afraid of her. He told this court that in reality he was afraid of his father and that it was his father who pushed him to do this.

'On August 31, he was brought to this court and he spoke to this Judge. D. testified that before coming to see the Judge on August 31, his father took him into a bathroom and told him to say that his mother was bothering him and that he wanted to live with Mr. F.. He appeared before this Judge on August 31 and told the undersigned that he didn't want to live with his mother and his step-father. However, D. testified that he felt very bad when he said this and that he really didn't mean it.

D. said he feels no pressure from his mother or his step-father and that he has a good relationship with them.

It was on Sunday, September 3 that he returned to his mother's house as a result of this court's intervention on August 31, 2006. Immediately upon returning to his mother, his step-father and his brother, he told them everything that had happened. He told them that his father had told him to say everything and that he didn't really mean it.

Thereafter, he was visiting with his father on a regular schedule, but on the third visit his father had just received and read a forensic evaluation done at the direction of this court. The father, thereupon, took D. to the office of the forensic psychiatrist who had written the report. The forensic report had indicated certain statements that D. had made to the forensic psychiatrist. D. told this court that after his father read the forensic report, he began to lecture D. about what was said in the forensic and told D. that it was not true, although D. did maintain that it was true. His father took him to Rockland County, drove him to the office

© 2008 Cengage Delmar Learning. All Rights Reserved. of the forensic psychiatrist and told him to go in to see the forensic psychiatrist and to tell him the things that he had previously told the forensic psychiatrist were lies. D. went in to see the forensic psychiatrist and told the forensic psychiatrist that what he had actually told him during the interview was true but that his father had now brought him back to the office and was telling him to tell the doctor that those prior statements were a lie. After leaving this forensic psychiatrist's office, D. was then driven to the courthouse and told by his father to go into the court and tell the Judge that the information in the forensic report was wrong and it should be changed. It should be noted that on that date, this court conducted an emergency hearing wherein it heard from D., heard the pressure that D. was under from his father, and issued an immediate, emergency order of protection directing the respondent to have no contact and to remain away from D.D. had been under enormous stress and was under incredible pressure when he appeared in court on that day after having been taken by his father to the forensic psychiatrist and to the court and had been told that the information in the forensic report needed to be corrected by D. notwithstanding that D. maintained the information was, in fact, accurate. This was an unbelievably difficult situation for a fourteen (14) year old boy to be placed in.

Some additional questioning of D. revealed that in connection with the August 31 hearing where D. came before this court, his father had told him to lie to the Judge. He stated that he is very nervous around his father. During the time he was away from his mother and his brother, he missed them a lot and his father would reassure him by saying "don't worry, you'll see them." His father also told him what to say during the forensic evaluation. Now D. is more secure because he has the order of protection.

D. says he has a very hard time speaking honestly with his father. He feels a tremendous amount of pressure from his father. He did state that he repeated to his father that he should go back to his mother but his father kept delaying and saying "we'll see." D. felt intimidated by his father. He didn't call his mother because he was afraid of his father. At the time he testified before this court in February, 2007, he said that he was not ready to see his father.

This proceeding is in actuality one to hold respondent in both criminal and civil contempt of court. The distinction was explained in Bank of Leumi v. Taylor-Cishahayo, 147 Misc.2d 685 ...

The term "contempt of court" encompasses civil and criminal contempt. The differences between the two types of contempt was set forth by the Court of Appeals in Matter of Department of Envtl. Protection v. Department of Envtl. Conservation (70 N.Y.2d 233, 239): "This court's power to punish for civil and criminal contempt is found respectively in Judiciary Law § 753(A)(3) and § 750(A)(3). Although the same act may be punishable as both a civil and a criminal contempt, the two types of contempt serve separate and distinct purposes. A civil contempt is one where the rights of an individual have been harmed by the contemnor's failure to obey a court order (People ex rel. Munsell v. Court of Oyer & Terminer, 101 N.Y. 245). Any penalty imposed is designed not to punish but, rather, to compensate the injured private party or to coerce compliance with the court's mandate or both (State of New York v. Unique Ideas, 44 N.Y.2d 345). A criminal contempt, on the other hand, involves an offense against judicial authority and is utilized to protect the integrity of the judicial process and to compel respect for its mandates (King v. Barnes, 113 N.Y. 476). Unlike civil contempt, the aim in a criminal contempt proceeding is solely to punish the contemnor for disobeying a court order, the penalty imposed being punitive rather than compensatory (State of New York v. Unique Ideas, 44 N.Y.2d 345, supra )....

The respondent argues that his conduct in keeping D. with him beyond two (2) weeks after camp ended and continuing through August 31, 2006 does not constitute contempt of this court's order of July 1, 2005. It is argued that the use of the phrase "at the discretion of the children" renders the order subject to interpretation and therefore it lacks the clear and unequivocal mandate necessary to find a person in criminal or civil contempt. This court accepts the principle of law which requires a clear and unequivocal mandate as a pre-requisite to a finding of criminal or civil contempt. However, under the facts of this proceeding, there is no doubt that the visitation requirements of the July 1, 2005 order were clear and unequivocal. There is ample evidence to support this determination.

To begin, the parties were in disagreement over the precise language which should be included in the order

© 2008 Cengage Delmar Learning. All Rights Reserved. of July 1, 2005. The respondent wrote to the court specifically objecting to the submission of a proposed order by petitioner's counsel because the respondent contended that all visitation was supposed to be at the children's discretion and specifically said that this meant that the children could visit with him whenever they chose, even during the time they were not scheduled to visit with him, but were to be with their mother. The court did not accept respondent's claim and signed the order submitted by petitioner's counsel.

Respondent's argument, if accepted by the court, would essentially mean that there would be no order of visitation. Rather, to accept the order as he contends, would result in the children, here D. in particular, visiting with his father whenever D. chose to do so. It would not matter whether it was during a time allocated to the mother or the father in the court order. This was clearly not the intention of the order. Instead, the use of the words "discretion of the children" applied to the time allocated to the father's visitation. Therefore, during the time set forth for the father's visitation, the child had discretion to either attend the visitation with the father or he could chose not to so attend.

Beyond the very terms of the order and the dispute regarding what language should be included in it, the colloquy which occurred in court on July 18, 2006 once again restated in the presence of the respondent that the use of the phrase "at the discretion of the children" was not equivalent to "the children could visit whenever they chose to do so." This court has no doubt that the order of visitation was clear and unequivocal as to when the respondent was entitled to visit with D. Respondent's arguments to the contrary were found to be incorrect and disingenuous.

Respondent next argues that the court cannot hold respondent in contempt because there was a failure to strictly comply with the statutory warnings required by the New York State Judiciary Law § 756. In this case it is not disputed that the application papers which were served upon the respondent omitted from them several letters along the right side of the page which contained the statutory warnings. Case law has held that an application which does not contain the prescribed notice and warnings on the face of the application is jurisdictionally deficient. Barreca v. Barreca, 77 A.D.2d 793.

In the oft cited case of Bank of Leumi v. Taylor-Cishahayo, 147 Misc.2d 685, there were several defects in the way the notice was presented. First, it did not provide the defendant with the required "notice that the purpose of the hearing is to punish the accused for a contempt of court, and that such punishment may consist of a fine or imprisonment, or both, according to law." In that case, the court stated that since the notice requirement was couched in normal "notice of motion" language, it might deceive the defendant into concluding that this is a normal motion.

In the instant case, it can hardly be argued that this respondent could reasonably have concluded that this was a normal motion and not one designed to hold him in contempt. The language in the instant application read as follows:

PLEASE TAKE NOTICE THE PURPOSE OF THIS HEARING IS TO PUNISH Y THE ACCUSED, FOR CONTEMPT OF COURT AN SUCH PUNISHMENT MAY CONSIST OF A FINE O IMPRISONMENT OR BOTH, ACCORDING TO LAW

WARNING

YOUR FAILURE TO APPEAR IN COURT MAY RES IN YOUR IMMEDIATE ARREST AND/OR IMPRISONMENT FOR CONTEMPT OF COURT.

No reasonable person could misconstrue the nature of the proceeding or the potential consequences. Certainly, this respondent was very familiar with court proceedings having been litigating in this court and Kings County for many years. During questioning by the petitioner's counsel, respondent even acknowledged having the statutory warnings of Judiciary Law § 756 on his own computer and having brought contempt applications against others. There is no doubt respondent had actual notice of and knew that the nature of the proceeding was to hold him in contempt and that the consequences could include a fine or jail.

In the Bank of Leumi v. Taylor-Cishahayo, id, the second failure the court found was that the layout of the face sheet detracted from the seriousness of the remedy sought. No similar argument can be advanced in this instant proceeding. The court, in that case, said that the purpose of the statement is defeated when the notice is not readily apparent to one reading the paper. In the instant case, the purpose is readily apparent.

Lastly, the court in Leumi v. Taylor-Cishahayo, id, said that the statute requires the warning be "printed or typewritten" and that the use of a rubber stamp and ink in that case did not meet the requirement. There, the intensity of the lettering was uneven and there existed a danger of the ink running if the page became wet. No similar argument can be advanced in the instant case. The function of the court is to render justice, not to perpetuate injustice. Contempt is the harshest remedy available in a civil action. It can subject the contemnor to fine or imprisonment, or both. Therefore, the statutory notice and warning requirements must be strictly enforced to insure that defendants are made aware of the severe penalties for their failure to comply with the subpoena. Bank of Leumi v. Taylor-Cishahayo, 147 Misc.2d 685, 690. The facts of this proceeding demonstrate beyond any reasonable doubt that the respondent was made aware of the severe penalties which could potentially be imposed.

Judiciary Law § 756 states as follows:

... the application shall contain on its face a notice that the purpose of the hearing is to punish the accused for a contempt of court, and that such punishment may consist of fine or imprisonment, or both, according to law together with the following legend printed or typed written in a size equal to at least 8 point bold type:

WARNING

YOUR FAILURE TO APPEAR IN COURT MAY RESULT IN YOUR IMMEDIATE ARREST AND/OR IMPRISONMENT FOR CONTEMPT OF COURT.

In Glen v. Glen, 262 A.D.2d 885, the Appellate Division, Third Department reviewed a matter where the respondent had been found in willful violation of a prior court order and committed to jail for six (6) months. That respondent had been found in "offensive violation" of an order of visitation after he relocated to South Carolina with the children even though petitioner had been granted visitation on Tuesdays and alternate weekends. In discussing respondent's argument that the lower court's finding was procedurally infirm, the court noted that that respondent was clearly aware that the nature of the proceeding was his claimed violation of the prior court order of visitation. Other cases had held that where the statutory notice is lacking completely, the application is fatally defective. Mente v. Wenzel, 192 A.D.2d 862, citing Matter of Rappaport, 58 N.Y.2d 725, Bigman v. Dime Sav. Bank, 138 A.D.2d 438; Murrin v. Murrin, 93 A.D.2d 858.

In the instant case, we are not confronted with a lack of the statutory notice nor an unsophisticated respondent. What we have here is service of a notice that complies in all respects with the requirements of Judiciary Law § 756, except that "OU" is left off of "YOU"; "D" is left off of "AND"; "R" is left off of "OR"; and "ULT" is left off of "RESULT". However, no reasonable person could possibly mistake the notice given in this case as anything other than a clear warning that the purpose was contempt and punishment could consist of a fine or imprisonment or both. It is clear to this court that the notice in this case was sufficient to comply with the requirements of Judiciary Law § 756. This respondent had ample notice of the nature of the proceeding and the potential consequences. The purposes of the statute have been clearly met.

After considering all of the testimony and evidence presented, it is the court's determination that the respondent, J.F., was not a credible witness. His testimony was contradicted by his fourteen (14) year old son in many ways. There are numerous examples of significant discrepancies between the information presented to this court by Mr. F. and that which was offered by his fourteen (14) year old son. These are detailed in prior parts of this court's decision. The conclusion of the court is that it accepts as credible the

It is also clear to this court that the respondent engaged in multiple acts of bad behavior. He has placed his fourteen (14) year old son in a position of enormous pressure. Some of the examples of this pressure include Mr. F.'s taking this fourteen (14) year old child to the office of the forensic psychiatrist who had conducted a forensic evaluation of the family and telling D. to go into the office of the psychiatrist and essentially tell the psychiatrist that what he had previously told him were lies. What a horrendous situation in which to place to fourteen (14) year old child! But Mr. F. made it worse. After leaving the forensic psychiatrist's office, he then took D. to the courthouse and informed D. that he was to go into the court and tell the Judge that the information in the forensic report was incorrect and it should be changed. Can you imagine a fourteen (14) year old child being told to walk into a courthouse and go see a Judge and tell him to change a report? This is some of the worst parental behavior, short of physical abuse, that this court has ever observed in a parent. But Mr. F. did not stop there. According to his son, whom the court believed, Mr. F. proceeded to tell D. to lie in court, prior to his appearance on August 31 at a hearing on the question of a habeas corpus petition brought by the child's mother.

Mr. F.'s claims of the child wanting to stay with him, trying to talk the child out of doing so, maintaining that D. did not want to go to his step-brother, J.'s bar mitzvah, claiming that D. said he would run away if he had to return to his mother, and other similar statements are not believed by this court. Mr. F. is a man who has put enormous, unjustifiable pressure on his fourteen (14) year old child. In addition to doing this, he has violated the order of this court by not returning this child after a two (2) week visit in the summer of 2006. He is found in violation of the court's order of July 1, 2005 and he is found in contempt of court for violating this court's order.

New York State Judiciary Law permits an offender to be imprisoned for a period of up to six (6) months as a consequence of a criminal contempt. See N.A. Development Co. Ltd, 99 A.D.2d 238.The determination of the court is that the respondent shall be sentenced to ten (10) days of community service in the Sheriff's Community Service work program as an alternative to incarceration. His service is to begin on Sunday, July 1, 2007 and it shall continue on each Sunday thereafter for ten (10) successive Sundays. Annexed to this order is a standard order of community service to the Sheriff's Community Service work program. The respondent is directed to follow the requirements of that order.

In addition, the respondent caused the instant application to be made by the petitioner and should be required to hold her harmless from any and all expenses that she has incurred in connection with this proceeding. As was aptly stated by the Appellate Division Second Department in Gerstein v. Gerstein, 302 A.D.2d 447: Considering the equities and relevant circumstances, the Family Court improvidently exercised its discretion in denying an attorney's fee. The father's conduct in failing to produce the child for visitation with the mother, which was provided for in the stipulation signed only slightly more than three months earlier, resulted in unnecessary litigation and caused the mother to incur an additional attorney's fee (see Morrissey v. Morrissey, 259 A.D.2d 472, 473, 686 N.Y.S.2d 71; Mastrandrea v. Mastrandrea, 268 A.D.2d 293, 294, 702 N.Y.S.2d 19). An award of attorney's fee of $3,000 is appropriate. Consequently, the court directs counsel for the petitioner to submit to this court within two (2) weeks from the date of this determination a written application detailing each and every expenditure and counsel fee incurred by the petitioner in connection with this proceeding. Respondent shall have one (1) week to submit any response to the application. Upon receipt of respondent's response, if any, the court will determine whether a hearing is necessary on that question.

The foregoing constitutes the decision and order of the court.

New Legislation

1. Standby Guardianships [Laws of 2007, ch. 71; NYS OCA Surrogates Court Advisory Committee proposal]: This measure amends the Surrogate’s Court Procedure Act §1726 to authorize Family and Surrogate’s Courts to

© 2008 Cengage Delmar Learning. All Rights Reserved. exercise discretion to either convene or dispense with a hearing regarding judicial appointment of a standby guardian and to appoint a guardian ad litem to recommend whether appointment of a standby guardian is in the child’s best interests. Effective: June 4, 2007.

2. Guardianship: Statewide Registry of Child Abuse and Maltreatment [S 2586-a/A 577-a]: This measure amends section 1706 of the Surrogate’s Court Procedure Act to require the New York State Office of Children and Family Services to inform Surrogate’s and Family Courts of reports of child abuse and maltreatment that are pending investigation, not simply indicated reports, regarding any person nominated to be a guardian, as well as individuals 18 years of age and older living in the home. Once the investigation has been completed, the NYS OCFS must inform the Court of the outcome. Not yet signed. Will be effective immediately upon signing.

3. Child Custody and Visitation: Records-check Requirements in Custody and Visitation Cases [A 7329-a/S 4877-a]: This measure provides that, before a Supreme or Family Court judge may issue any temporary or final custody or visitation order, three databases must be checked: the domestic violence registry of orders of protection operated by the NYS Unified Court System and NYS Police, the sex offender registry operated by the NYS Division of Criminal Justice Services and the state central registry of reports of child abuse and maltreatment that is operated by the NYS Office of Children and Family Services. The only exception is that where successive temporary orders are issued on the same case, the check for the first temporary order will suffice. Results of the registry checks must be disclosed to the parties' attorneys and law guardian, if any. Cognizant that temporary orders must often be issued the same day as the application, the bill requires the State Police, the Division of Criminal Justice Services and the Office of Children and Family Services to ensure the “prompt” provision of the information to the courts. Not yet signed. Will be effective 30 days after signing.