| Matter of Luke v Luke |
| 2011 NY Slip Op 08861 [90 AD3d 1179] |
| December 8, 2011 |
| Appellate Division, Third Department |
| In the Matter of Melvin W. Luke, Respondent, v Heidi L. Luke,Appellant. (And 12 Other Related Proceedings.) |
—[*1] Martha N. Hertzberg, Ithaca, for respondent. Steven J. Getman, Ovid, attorney for the child.
McCarthy, J. Appeal from an order of the Family Court of Schuyler County (Argetsinger, J.),entered October 4, 2010, which, among other things, granted petitioner's applications, in 13proceedings pursuant to Family Ct Act articles 4 and 6, to, among other things, modify a priororder of custody.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the parents ofone child (born in 2001). The parties are still married, but separated prior to the child's birth. In2003, after a DNA test established the father's paternity, the parties agreed to a stipulated order ofjoint custody, physical custody to the mother and visitation with the father on alternate weekends.These visits apparently only occurred for one or two months. Also in 2003, a support order wasentered against the father. The father then moved to New Jersey. Each party claims that he or shelacked contact information for the other after 2003. In 2004, Family Court issued a default orderawarding the mother sole custody, with visitation to the father as agreed upon by [*2]the mother.[FN1]
In 2007, the father returned to Schuyler County. That same year, the mother apparentlymoved to New Jersey and then Pennsylvania. In 2009, the father sought Family Court's assistanceto locate the mother and filed a petition seeking visitation with the parties' daughter. In October2009, after these proceedings had commenced, the mother moved back to Schuyler County, butwithin a few months she moved to Steuben County. The father filed numerous petitions seekingvisitation, custody and downward modification of support, and alleging that the mother violatedthe prior visitation order as well as temporary orders entered during these proceedings. Followinga hearing on these and other petitions,[FN2]Family Court awarded the parties joint custody with the child spending four days per week withthe father and three days per week with the mother. The court also terminated the father's supportobligation effective January 2010, the date he filed his support modification petition. The motherappeals.
Family Court's modification of custody has a sound and substantial basis in the record. Theparties' numerous moves, the father trying to reestablish contact and the mother hindering thoseefforts all provide changed circumstances reflecting a need to modify the prior custody andvisitation order. Although the father did not actively attempt to enforce his visitation rights andpursue his relationship with his daughter from 2003 to 2009, he testified that he had no vehicle inNew Jersey, had no contact information for the mother or child and did not know how to findthem. The mother stopped bringing the child to visitation after one or two months in 2003and—despite having agreed to the visitation—filed unsubstantiated petitions toterminate the visitation soon after entering the stipulation. The mother moved numerous times,including four times during the pendency of these proceedings, and never informed the father.Some of her residences were crowded or unsuitable for children (see Matter of Valenti v Valenti, 57AD3d 1131, 1133 [2008], lv denied 12 NY3d 703 [2009]). One was a safe housewhere she fled to escape domestic abuse by her paramour—abuse that was witnessed bythe daughter and caused her to fear the paramour. The mother also violated almost everytemporary visitation order entered during the pendency of these proceedings by failing to bringthe child to visit with the father. When she did not have a suitable place to live, she wrote a letterassigning custody of her daughter and son to her paramour's adult daughter, without consultingthe father. The paramour's daughter also deprived the father of his court-ordered visitation, andthe mother passed blame to her. At the time of the Lincoln hearing, the child had not seenher mother for almost two months, and the mother testified that she called only when she hadminutes on her phone. Despite this constantly changing situation, the mother denied that shemade any poor choices that caused instability in the child's life.
While the father had lost contact with his daughter for several years and did not adequatelyexplain why he took so long to attempt to reestablish a connection, at the time of the hearing hehad been working for a year to form a relationship with her. Those efforts were constantlythwarted by the mother and her paramour's daughter, who failed to bring the child to [*3]visits and even kept the child out of school on Fridays when thefather was supposed to pick the child up for weekend visitation. Everyone agreed that the childshould remain in the same school district; the father lived near the child's school, while themother had moved to a different district. The father also agreed to open a preventative servicesfile with the local social services agency and bring the child to mental health counseling.
Courts should consider the child's wishes as one factor in the best interests analysis, but thosewishes are not determinative (see Dintruff v McGreevy, 34 NY2d 887, 888 [1974]; Matter of Meier v Meier, 79 AD3d1295, 1296 [2010]). The child indicated that she did not like visiting her father, but her onlyreason was because there were no other children there for her to play with. Other recordinformation indicates that, despite some initial hesitation or pre-visit agitation, the child did wellon the visits. Family Court did not err in placing the child with the father for four days per week.
While the law expresses a preference for keeping siblings together, the rule is not absoluteand has become complicated by changing family dynamics and the presence of multiple halfsiblings;[FN3]the court must ultimately decide what is best for the child at issue (see Matter of Williams v Williams, 66AD3d 1149, 1152 [2009]; Matter ofTavernia v Bouvia, 12 AD3d 960, 962 [2004]; Matter of Esterle v Dellay, 281AD2d 722, 727 [2001]). Here, the custody petitions regarding the mother's son—the halfbrother of the daughter involved in this appeal—were withdrawn or dismissed, leaving thatchild in the mother's custody. Evidence indicated that the son would have difficulty beingseparated from his half sister, but there was no evidence of ill effects to the daughter from anyseparation. In any event, Family Court's order left those children together for three days eachweek.[FN4]Considering the totality of the circumstances, including the custodial interference by the mother,the record contains a sound and substantial basis for the court's custody determination (see Matter of Dobies v Brefka, 83AD3d 1148, 1151 [2011]).
Family Court did not abuse its discretion by terminating the father's child support obligation.The court was authorized to suspend support payments for periods when the mother wrongfullyinterfered with or withheld visitation (see Domestic Relations Law § 241;Matter of Dobies v Brefka, 83 AD3d at 1152). The record supports the finding that themother deliberately and unjustifiably frustrated the father's visitation by failing to produce thechild, moving without notifying the father and attempting to informally transfer custody toanother person who also did not produce the child for visitation—again without informingthe father. Additionally, the court's custody determination placed the child in the father's care forthe majority of each week, providing a basis to eliminate his support obligation. Hence, the courtdid not err in terminating the father's support obligation as of January 2010, the date he filed apetition seeking such relief (see Matter of Alexander v Alexander, 129 AD2d 882, 884[1987]). Although the mother contends that the order is unclear as to the father's liability forsupport arrears, the order does not mention arrears, thus leaving arrears for any period prior toJanuary 2010 intact.
Peters, J.P., Lahtinen, Stein and Garry, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: The father asserts that he wasnever notified of this proceeding or the ensuing order.
Footnote 2: Other individuals who are notbiologically related to the parties' daughter also sought custody of her and her half brother.
Footnote 3: The mother's son is the child ofher paramour, making the paramour's adult daughter—with whom the mother placed herson and the parties' daughter—the son's half sister.
Footnote 4: Rather than placing the daughterwith her mother, the order actually provided that the daughter be with her half brother for threedays per week. Thus, if the mother continued to leave her son with her paramour's daughter, theparties' daughter would spend three days with her half brother in that woman's care.