Matter of Cisse v. Graham

Roman, J.,

dissents, and votes to reverse the order, deny the father’s petition, and grant the mother’s petition to the extent of remitting the matter to the Family Court, Queens County, to set forth a new visitation schedule, in accordance with the following memorandum: The Family Court’s determination to award the father custody of the 13-year-old subject child, who has been raised by the mother since birth, lacks a sound and substantial basis in the record. The father failed to demonstrate that there had been a sufficient change of circumstances since the issuance of the prior custody order such that a modification of custody is required to protect the best interests and welfare of the child. Therefore, I respectfully dissent.

The record reveals that there are significant differences in the parties’ cultural and religious backgrounds. The mother is a Muslim who was born in Senegal, and the father is a Roman Catholic. The parties, who were never married, have one child together, a daughter born on March 24, 2001. Their relationship ended before the birth of the child. In an order dated June 30, 2004 (hereinfter the 2004 custody order), the Family Court awarded custody of the child to the mother and visitation to the father, with the visitation to occur pursuant to a stipulation signed by the parties. In November 2007, the mother filed a petition to modify the father’s visitation schedule to make visitation more “conducive to [the child’s] academic schedule.” In September 2008, the father filed a petition to modify the 2004 custody order so as to award him sole custody of the child. In his petition, the father alleged that there had been a change in circumstances in that the mother had frustrated his visitation rights, the child wished to reside with him, and the mother left the child in aftercare everyday until 6:00 p.m. Following a hearing, the Family Court issued an order transferring custody to the father, and the mother appeals. In September 2013, this Court stayed enforcement of the order appealed from pending hearing and determination of the appeal.

To modify an existing court-sanctioned custody arrangement, there must be a showing of a change in circumstances such that modification is necessary to ensure the continued best interests of the child (see Matter of Dezil v Garlick, 114 AD3d 773, 773 [2014]; Matter of Sparacio v Fitzgerald, 73 AD3d 790, 790 [2010]; Matter of Russell v Russell, 72 AD3d 973, 974 [2010]). *808 The best interests of the child are determined by a review of the totality of the circumstances (see Eschbach v Eschbach, 56 NY2d 167, 172 [1982]; Matter of Sparacio v Fitzgerald, 73 AD3d at 791 ). “Along with the factors considered in any custody determination, the court must also consider the stability and continuity afforded by maintaining the present arrangement” (Gonzalez v Gonzalez, 17 AD3d 635, 636 [2005]; see Cervera v Bressler, 90 AD3d 803, 805 [2011]). The authority of this Court in custody determinations is as broad as that of the hearing court (see Matter of Orellana v Orellana, 112 AD3d 720, 722 [2013] ; Matter of Moran v Cortez, 85 AD3d 795, 796 [2011]), and while mindful that the hearing court has an advantage in being able to observe the demeanor and assess the credibility of witnesses, “[a]n appellate court would be seriously remiss if, simply in deference to the finding of a Trial Judge, it allowed a custody determination to stand where it lacks a sound and substantial basis in the record” (Matter of Gloria S. v Richard B., 80 AD2d 72, 76 [1981]; see Matter of Caruso v Cruz, 114 AD3d 769, 772 [2014] ; Matter of James A.-S. v Cassandra A.S., 107 AD3d 703, 706 [2013]).

Here, the Family Court’s determination to transfer custody of the subject child, who was 12 years old at the time the order appealed from was issued, lacked a sound and substantial basis in the record. The Family Court failed to accord sufficient weight to the child’s need for stability and to the impact of uprooting her from the care of her mother, with whom she has resided for her entire life, as well as removing her from her current home, school, and activities (see Matter of Sidorowicz v Sidorowicz, 101 AD3d 737, 738 [2012]; Matter of Russell v Russell, 72 AD3d at 974-975 ; Matter of Larkin v White, 64 AD3d 707, 709 [2009]). This Court has consistently recognized that “ ‘[priority in custody disputes should usually be given to the parent who was first awarded custody . . . because this policy assures stability in the child’s life’ ” (Matter of Conway v Gartmond, 108 AD3d 667 , 668 [2013], quoting Matter of Ross v Ross, 96 AD3d 856, 857 [2012]; see Matter of Sidorowicz v Sidorowicz, 101 AD3d at 738 ; White v Mazzella-White, 84 AD3d 1068, 1069 [2011]; Matter of Russell v Russell, 72 AD3d at 974 ; Matter of Ganzenmuller v Rivera, 40 AD3d 756, 756 [2007]; Matter of Salvati v Salvati, 221 AD2d 541, 542 [1995]; Matter of Lobo v Muttee, 196 AD2d 585, 587 [1993]; Richman v Richman, 104 AD2d 934, 935 [1984]; see also Friederwitzer v Friederwitzer, 55 NY2d 89, 94 [1982]). Indeed, in an attempt to assure stability, this Court has declined to separate a child from the custodial parent even in cases where the child was much younger, and, thus, had been in the care of that parent for a far shorter period of time than the *809 subject child, who, as noted above, was 12 years old when the Family Court rendered its decision (see e.g. Matter of Larkin v White, 64 AD3d at 708-709 [in awarding the father sole custody, the hearing court failed to afford sufficient weight to the child’s need for stability, where the child was six years old and the mother had been the child’s primary caregiver since birth]; Matter of Salvati v Salvati, 221 AD2d at 542-543 [the Family Court failed to give sufficient weight to the facts that the child, who was almost four years old at the time of the hearing, had resided with his father for his entire life and that the father had been his primary caregiver even before the parties separated]; see also Matter of Lobo v Muttee, 196 AD2d at 587-588 [remitting for a new hearing and noting that the Family Court “failed to give sufficient weight to the fact that the child, who was five years old at the time of the hearing, had resided with his father his entire life and that the father had been the primary caretaker after the mother left the marital residence”]). Where, as here, “there is no indication that a change of custody will result in significantly enhancing the child’s welfare, it is generally considered in the child’s best interests not to disrupt his [or her] life” (Matter of Salvati v Salvati, 221 AD2d at 543 ; see Matter of Ross v Ross, 96 AD3d at 857 ; Gonzalez v Gonzalez, 17 AD3d at 636 ).

In this matter, the evidence at the hearing established that the child is well cared for by the mother, and that there is a strong bond between her and the child. The court-appointed forensic evaluator described the mother as a loving, dedicated, and nurturing parent “who is able to monitor and guide her child” and “clearly able to provide a stable environment,” and the child reported having a good relationship with the mother. The evaluator noted in his report that “it could also be argued that as [the child] approaches adolescence [she] might benefit from her mother’s wisdom and similar ‘cultural’ experience (i.e., being the product of two different cultures) as [the child] tries to negotiate her emerging sense of identity.” By contrast, the father seemingly minimized the significance of these issues. As the Family Court recounted in its order, “[w]hen asked about bi-cultural and bi-racial issues the child faces, the father replied that the child’s skin color is one component, much as red hair is one component of a person.” Notably, the evaluator expressed concern about the “psychological repercussions” that a transfer of custody might have on the child and “the price she might pay.”

Further, nothing in the record suggests that the father would be able to provide a better home environment or better care for *810 the child (see e.g. Cervera v Bressler, 90 AD3d at 805 ). The child resides with the mother in LeFrak City, Queens, in a three-bedroom apartment shared with her maternal grandmother, a budget coordinator for UNICEF, and her maternal grandfather, a retired editor for the United Nations. According to the forensic evaluator, the child reported feeling close to her maternal grandparents. The father, a school teacher in Queens County, currently resides in West Babylon, Suffolk County, with his current wife and their three children, who were ages eight, six, and four at the time the order appealed from was issued. At the mother’s residence, the child has her own bedroom, which is significant as she enters adolescence. At the father’s residence, however, the child shares a bedroom with her four-year-old half sibling. Additionally, the record suggests that the mother is better able to provide for the child’s financial needs. The mother testified that she was earning $91,000 per year with the potential for an increase in annual salary to approximately $120,000. However, the record lacks evidence concerning the father’s financial ability to provide for the child, in addition to his three other children.

The primary change in circumstances in this case since the issuance of the 2004 custody order was brought about by the father’s decision to relocate to Suffolk County in approximately 2007. Significantly, while that order prohibited the mother from relocating with the child more than 25 miles from the location where she then resided, the father moved substantially in excess of that distance from Forest Hills, Queens, to West Babylon, Suffolk County, with his current wife to accommodate their growing family. The father’s relocation created an unreasonable midweek travel schedule for the child, causing her to be driven for approximately IV2 hours twice a week to the father’s home for visitation. As a result, the child often has to do her homework in the car. After visitation, the child is then driven home later in the evening. The forensic evaluator noted that the father did not appear to be aware of the toll that the weekday travel to West Babylon takes on the child. Thus, by her 2007 petition, the mother understandably sought to alleviate the child’s travel burden by making visitation more conducive to the child’s academic schedule. A court-ordered change in custody to the father was diametrically in opposition to the mother’s request for a modification of the visitation schedule. The Family Court’s determination transferring custody did not, contrary to the majority’s suggestion, afford the mother, who has had custody of the child for her entire life, “precisely what she asked for in her petition.”

Further, the mother cannot be faulted for having enrolled the *811 child at the Manhattan campus of the United Nations International School (UNIS), which the mother pays for without assistance from the father. The child has been enrolled at that school since entering kindergarten in September 2006, well before the father relocated to Suffolk County, and approximately two years before he filed his custody petition. Moreover, it is undisputed that the child is thriving academically. The forensic evaluator testified that UNIS appeared to be a good fit for the child since, as the mother stressed, UNIS emphasized diversity. Additionally, the mother had enrolled the child in extracurricular activities, including swimming, tennis, tap dancing, and soccer. The child was also participating in a school play and attending play rehearsals after school. The record also reflects that the child has established friendships at UNIS.

The Family Court stated that it did not fault the mother for her employment obligations and applauded her success. However, the court, in effect, unfairly penalized her for her career and work schedule. “[T]he custody-seeking mother who works outside the home should not be penalized for her employment, any more than should the father” (Linda R. v Richard E., 162 AD2d 48, 55 [1990]). The mother, who attended Columbia University and Stony Brook University for her undergraduate studies, received her Master’s Degree in financial engineering from Polytechnic Institute in January 2007, and subsequently became an associate analyst for Moody’s Investors Service. At the time of the hearing, the mother was also studying for her Chartered Financial Analyst exams. She testified that her hours of employment were Monday through Friday, from approximately 9:00 a.m. to 5:00 p.m. Nevertheless, the mother was able to leave work at 3:00 p.m. on Mondays and Wednesdays to pick the child up from school and take her to Baruch College to be part of a swim team. Although the mother, at times, would work from home in the evening, she generally did so after the child went to bed. The child also enjoyed spending time with the maternal grandmother. There was testimony that the maternal grandmother’s relationship with the child was “incredible,” that they were “basically inseparable,” and that they engaged in numerous activities together, including going to the nail salon, shopping, watching movies, and cooking. Under these circumstances, the evidence adduced at the hearing did not demonstrate that a change of custody was warranted based upon the mother’s work schedule (see Matter of Chery v Richardson, 88 AD3d 788, 789 [2011]; Matter of Moreau v Sirles, 268 AD2d 811, 813 [2000]).

Further, it is not clear that the father is more likely than the *812 mother to foster a relationship between the child and the noncustodial parent. In his prior evaluation, the forensic evaluator found that the father had “impressed as struggling to contain a great deal of anger that he harbors towards the [mother].” Additionally, the evaluator stated that the father had, at times, appeared to “have acted out his anger against the [mother] in [a] retaliatory manner,” and noted that the father’s “filing for custody in the heels of [the mother’s] filing for a modification of the visitation order could be interpreted as being consistent with such hypothesis.” Significantly, although the parties stipulated that the child was to be exposed to both Catholic traditions and Muslim traditions, the father had the child participate in her First Communion without the mother’s consent. This conduct, which was the subject of a prior appeal to this Court (see Matter of Cisse v Graham, 87 AD3d 1008 [2011]), reflects poorly on the father’s ability to foster an appropriate relationship with the mother if awarded custody. Although the mother had previously interfered at times with the father’s visitation, the record indicates that this issue was resolved well before the Family Court’s determination (see Matter of Ross v Ross, 96 AD3d at 857-858 ; Cervera v Bressler, 90 AD3d at 805-806 ; Matter of Chery v Richardson, 88 AD3d at 789 ; Matter of Fallarino v Ayala, 41 AD3d 714, 715 [2007]). As the Family Court found, “[t]o the extent that the father alleges in his petition that the mother was interfering with his relationship, it appears that in recent years nothing has occurred giving rise to this claim.”

Lastly, although the mother was reluctant to enroll the child in therapy, as recommended by the forensic evaluator, she attributed this reluctance to the fact that her own participation in therapy had been used against her and she did not want the same thing to happen to the child. Nevertheless, she testified that she was not opposed to the child participating in therapy, and had enrolled the child in a counseling program at her school. Moreover, it is noted that while the father asserts that the mother ceased the child’s current therapy sessions, the mother maintains that the child is currently enrolled in ongoing therapy in Manhattan near her school.

The child has lived since her birth 13 years ago in her mother’s home. Sole custody has rested with the mother for the entire 13-year span. The record reflects that the mother is a financially stable, upwardly mobile professional who has paid for and provided her daughter with a private school education at a school particularly attuned to the child’s cultural and racial diversity. The child is thriving academically and has participated *813 in varied extracurricular activities. As noted above, the primary-change in circumstances that occasioned the mother’s petition to modify the visitation schedule was caused by the actions of the father. To meet the needs of his growing family, the father disregarded the 25-mile limitation that had been placed on any relocation by the mother, and moved out to Suffolk County. The father’s relocation, which focused on improving the circumstances for his wife and their three young children, was not in any way made to address the needs or best interests of the child. In sum, no sound and substantial basis exists in this record for uprooting the child from the residence of her mother and the only school she has ever known. Accordingly, I would reverse the order, deny the father’s petition, and grant the mother’s petition to the extent of remitting the matter to the Family Court, Queens County, to devise a visitation schedule which reduces the weekday travel the child must endure between the father’s house in West Babylon and the mother’s residence in LeFrak City, but which allows for the continuation of the meaningful relationship between the father’s family and the child (see Mathie v Mathie, 65 AD3d 527, 531 [2009]).