In May 2007, petitioner filed a petition for a writ of habeas corpus claiming that when he was unable — due to financial circumstances — to pick up his daughter at Respondent’s home after a visit with her pursuant to the 2005 Order, Respondent refused to return the Subject Child to New York. The Court refused to issue a writ and dismissed the petition noting that the 2005 Order requires Petitioner to pick up his daughter from Respondent’s home and that Respondent was not mandated to travel to New York to return the Subject Child to Petitioner. A New York Family Lawyer said the petitioner did not allege that he went to Respondent’s home to obtain the Subject Child.
A New York Family lawyer said that all parties and counsel were present at a court proceeding regarding Respondent’s filed petitions. At that time Respondent expressed her concern that Petitioner planned to relocate the Subject Child to Maine which would prevent her from having child visitation with the Subject Child as set by the 2005 Order. Accordingly, the Court issued an interim order directing that the Subject Child’s residence remain in New York State to allow for the child visitation between Respondent and the Subject Child as provided in the 2005 Order to continue to be effectuated.
Thereafter, a New York Custody Lawyer said the Petitioner dams filed two petitions before this Court seeking (1) modification of the 2005 Order to allow him to relocate with the Subject Child to Maine, and (2) alleging that Respondent violated the 2005 Order with respect to child visitation.
Respondent filed a petition for a writ of habeas corpus alleging that, contrary to this Court’s May 2007 Interim Order, Petitioner had relocated the Subject Child to Maine and failed to disclose the Subject Child’s whereabouts to her and failed to comply with the 2005 Order regarding visitation between Respondent and the Subject Child.
A Brooklyn Family Lawyer said the Court held an in camera hearing with the child and a fact finding matter on these petitions. The Court has considered all of the credible testimony and evidence, including the sealed testimony elicited during the in camera hearing and preserves that sealed record for future review.
While the Court has considered all of the testimony and evidence submitted, given the extensive nature of the record, the Court will address only the crucial testimony and documents critical to its decision on the best interests of the Subject Child.
Although these matters began as allegations by Respondent that Petitioner failed to comply with the Court’s 2005 Order, the case soon erupted into a new battle for custody when Petitioner relocated the Subject Child to Maine in contravention of the Court’s Interim Order. A Bronx Family Lawyer said the respondent contends that Respondent has violated the Court’s Order regarding her child visitation and that because he also violated the May 2007 Interim Order, the only way she may have significant contact with the Subject Child is for her to have sole legal and physical custody. Petitioner on the other hand wants the Court to ignore his blatant violation of the Court’s Order not to relocate the Subject Child to Maine before the hearing on the issue and to dismiss Respondent’s petitions.
As an initial matter, while the best interests of the child is the primary consideration in a child custody proceeding, a modification of an existing custody arrangement should be allowed only upon a sufficient showing of a change in circumstances warranting a real need for a change in order to insure the continued best interests of the child. Moreover, “priority, in the first instance, will be accorded an existing custodial arrangement,” with the weight accorded to such arrangement dependent upon “whether the prior disposition resulted from a full hearing or a stipulation.”
Here, after several years of “failed” stipulated orders of joint legal custody and shared physical custody, the Court had a full hearing on this issue of custody which resulted in the 2005 Order. Thus, the Subject Child’s right to stability and permanency with the same parent after a full hearing on the issue which withstood appeal should only be undermined if the “totality of the circumstances warrants a change that is in the best interests of the Subject Child.”
Accordingly, although Petitioner relocation to Maine does constitute a change of circumstance, Respondent has failed to establish that a change in custody to her at this time will ensure the Subject Child’s best interests. Indeed, history has now shown that neither party can be relied upon to promote the other’s relationship with the Subject Child. The 2005 Order is replete with instances this Court found as credible evidence that Respondent had blocked Petitioner access to the Subject Child and had sought to undermine the relationship between the two. The evidence at this trial, as noted earlier, also demonstrates Respondent’s continued contempt for Petitioner’s role as sole legal custodian.
With respect to her access to the Subject Child, in this current proceeding, Respondent testified to only a handful of instances in a period of almost three years in which Petitioner intentionally interfered with her access to the Subject Child. Respondent noted that there were two instances in 2006 and “three or four” in 2007 in which her visitation to the Subject Child was at issue. In most of those instances, although Respondent did not have the visitation she sought with the Subject Child, she did have access to the Child, though less than that to which she was entitled pursuant to the 2005 Order. Moreover, although Respondent doesn’t speak to the Subject Child over the telephone as often as she would like or as often as she should be able to under the 2005 Order, she did admit that she speaks to her at least once or twice out of every five or six calls.
More importantly, Respondent admitted that Petitioner has frequently given her additional child visitation with the Subject Child — over and above that which is provided in the Court order. Although Respondent testified that Petitioner only gives her additional time with the Subject Child when it suits his schedule. Irrespective of Petitioner’s reasons for allowing the visits, the evidence shows that Respondent was afforded additional time with the Subject Child, albeit at Petitioner’s convenience.
The Court does find credible Respondent’s testimony that she has been unable to participate in her daughter’s educational planning as Petitioner has legal custody and the teachers at the school in Maine would not speak to her about her daughter. Nonetheless, the evidence at trial makes it quite clear that Respondent’s violation petitions, even though some violations were established, would not, in and of themselves, rise to a level of a change of custody or even a change in the terms of child visitation.
This Court finds that for all of the reasons articulated above, and upon consideration of all the credible testimony and evidence, Respondent failed to sustain her burden of proof with respect to her modification of custody petition; sustained her burden with respect to the violation petitions; that Petitioner failed to sustain his burden of proof as to his relocation and violation petitions, and, upon consideration of all of the factors with respect to the Subject Child’s best interests, orders the following:
IT IS HEREBY ORDERED that any and all prior Orders concerning custody and/or visitation with the Subject Child are hereby superseded by this Order; and it is further ORDERED that Petitioner shall retain sole legal and physical custody of the Subject child on the condition that he return the Subject Child to reside within the jurisdiction of New York.
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