| Matter of Felty v Felty |
| 2013 NY Slip Op 05454 [108 AD3d 705] |
| July 24, 2013 |
| Appellate Division, Second Department |
| In the Matter of Carla Felty,Appellant-Respondent, v James Felty,Respondent-Appellant. |
—[*1] Robert G. Smith, New York, N.Y. (Paige E. Zandri of counsel), forrespondent-appellant. Lydia S. Antoncic, New Rochelle, N.Y., attorney for the children.
In a child custody proceeding pursuant to Family Court Act article 6, the motherappeals from so much of an order of the Family Court, Orange County (Kiedaisch, J.),dated December 13, 2011, as, after a hearing, awarded the father visitation in Kentuckywith the parties' children every summer and every school break for "Thanksgiving,Christmas, winter, mid-winter, spring, and Easter," awarded the father a "right of firstrefusal" for visitation in Kentucky during four of the subject children's three-dayweekend breaks from school, and did not award her access to the subject children bycomputer or telephone while they are visiting the father in Kentucky, and the fathercross-appeals, as limited by his brief, from so much of the same order as granted themother's petition for sole legal and physical custody of the subject children and onlyawarded him visitation.
Ordered that the order is modified, on the law and in the exercise of discretion, (1) bydeleting the provision thereof awarding the father visitation in Kentucky during schoolbreaks for "[e]very Thanksgiving, Christmas, winter, mid-winter, spring, and Easter,"and substituting therefor a provision awarding the parties equal parenting time duringthose enumerated school breaks, (2) by deleting the word "Kentucky" from subdivision 4in the second decretal paragraph thereof, and substituting therefor the words "NewYork," (3) by adding to subdivision (4) in the second decretal paragraph thereof aprovision directing the mother to reimburse the father for one half of the reasonabletransportation costs for the father's round-trip travel between Kentucky and New Yorkfor the four visitations set forth in said subdivision, and (4) by adding a provision theretoawarding the mother reasonable access to the subject children, by telephone or computeror both, while they are visiting the father in Kentucky, and (5) by deleting the provisionthereof requiring the father to return the children to the mother five days before thecommencement of school after summer vacation, and substituting therefor a provisionrequiring the father to return the children to the mother 10 days before thecommencement of school after summer vacation; as so modified, the order is affirmedinsofar as appealed and cross-appealed from, without costs or disbursements, and thematter is remitted to the Family Court, Orange County, to set forth a new visitationschedule regarding "Thanksgiving, Christmas, winter, mid-winter, spring, and Easter"that apportions visitation during those school breaks equally between the parties inaccordance herewith; and it is [*2]further,
Ordered that pending determination of the new visitation schedule, the visitationprovisions regarding "Thanksgiving, Christmas, winter, mid-winter, spring, and Easter"school breaks set forth in the order dated December 13, 2011, shall remain in effect.
The parties are the parents of twins born in September 2005, in Orange County, NewYork. For more than one year after the children were born, the family lived in Kentucky.The parties separated in January 2007 and, in or around March 2007, the mother movedback to Orange County with the children while the father remained in Kentucky. Laterthat year, the mother filed a petition for sole legal and physical custody of the children,who remained in the mother's care during the pendency of the proceedings, with frequentand substantial visitation with the father in Kentucky. On December 13, 2011, the FamilyCourt granted the mother's petition for sole legal and physical custody of the children,and awarded liberal visitation to the father, including, inter alia, visits in Kentuckyduring the children's entire summer vacation each year, all of their school breaks longerthan three days (including Thanksgiving, Christmas, and Easter breaks), and four of theirthree-day weekend breaks (wherein the children have Monday off from school).
In adjudicating custody and visitation rights, the court's paramount concern is thebest interests of the child (see Eschbach v Eschbach, 56 NY2d 167, 171 [1982];Matter of Purse v Crocker,95 AD3d 1216, 1216-1217 [2012]; Koppenhoefer v Koppenhoefer, 159AD2d 113, 116 [1990]). In determining those best interests, the court must evaluate thetotality of the circumstances (see Eschbach v Eschbach, 56 NY2d at 171; Matter of Crivelli v Tolento,100 AD3d 884, 885 [2012]). Among the factors to be considered when evaluatingthe child's best interests are "the parental guidance provided by the custodial parent, eachparent's ability to provide for the child's emotional and intellectual development, eachparent's ability to provide for the child financially, the relative fitness of each parent, andthe effect an award of custody to one parent might have on the child's relationship withthe other parent" (Craig vWilliams-Craig, 61 AD3d 712, 712 [2009] [internal quotation marks omitted];see Eschbach v Eschbach, 56 NY2d at 172; Matter of Blakeney v Blakeney, 99 AD3d 898 [2012];Matter of Purse v Crocker, 95 AD3d at 1217). Moreover, where domesticviolence occurs, as it did here, "the court must consider the effect of such domesticviolence upon the best interests of the child" (Domestic Relations Law § 240 [1];see Matter of Wissink v Wissink, 301 AD2d 36, 39-40 [2002]).
Where, as here, a complete evidentiary hearing has been held on the issue of custody,any determination depends to a great extent upon the hearing court's assessment of thecredibility of the witnesses and of the character, temperament, and sincerity of the parties(see Eschbach v Eschbach, 56 NY2d at 171; Matter of Crivelli v Tolento,100 AD3d at 885; Matter of Blakeney v Blakeney, 99 AD3d at 898). Thecredibility findings of the Family Court will be accorded great weight and itsdeterminations regarding custody and visitation will not be disturbed unless they lack asound and substantial basis in the record (see Matter of Crivelli v Tolento, 100AD3d at 885; Matter of Blakeney v Blakeney, 99 AD3d at 898-899; Matter of Nikolic v Ingrassia,47 AD3d 819, 820 [2008]).
Here, the Family Court's determination awarding sole legal and physical custody ofthe children to the mother has a sound and substantial basis in the record. The evidence atthe hearing established that the children had a strong, positive, and healthy relationshipwith both parents. Moreover, each parent was able to provide a sufficiently stableenvironment, and adequately provide for the children's emotional and intellectualdevelopment. However, the Family Court, having the benefit of observing and listeningto the witnesses firsthand, credited the mother's allegations of domestic violence by thefather, and found that his denials thereof lacked veracity (see Costigan v Renner, 76AD3d 1039, 1040 [2010]). Many of these acts of domestic violence occurred beforethe children were born and they were present during only one of these incidents, whenthey were infants. Nonetheless, the Family Court properly found that the domesticviolence perpetrated by the father demonstrates that the mother is better suited to providethe children with moral and intellectual guidance (see Matter of Moreno v Cruz, 24 AD3d 780, 781 [2005];Matter of Wissink v Wissink, 301 AD2d at 40; cf. Costigan v Renner, 76AD3d at 1040).[*3]
Also supporting the Family Court's custodydetermination was evidence establishing that the mother is better able and more preparedto closely monitor certain issues pertaining to the children's medical condition. Contraryto the father's contention, the record reveals that the mother did not deliberately interferewith his relationship with the children (cf. Matter of Purse v Crocker, 95 AD3dat 1217). Accordingly, the Family Court's determination awarding custody to the motherwill not be disturbed (see Matter of Blakeney v Blakeney, 99 AD3d at 899;Matter of Moreno v Cruz, 24 AD3d at 781).
While we agree with the Family Court that the father should be afforded liberalvisitation, certain provisions of the Family Court's visitation schedule are not appropriate.The father was awarded visitation in Kentucky during the children's entire summervacation each year, every school break lasting four days or longer (including breaks forThanksgiving, Christmas, and Easter), and four additional three-day weekend breaksduring the school year.
Given the strong attachments that the children have to both parents and thegeographic distance between the parents (more than 850 miles), the Family Courtprovidently exercised its discretion in determining that the father should have visitationin Kentucky for the summer, every year. There was undisputed evidence that the childrenspent summer months in Kentucky ever since the mother moved them to New York.Moreover, the children have strong attachments to their paternal grandparents inKentucky, as well as relationships with numerous cousins there. However, the childrenshould be returned to the mother 10 days before, rather than five days before, thecommencement of each school year.
The provision of the visitation schedule which, in addition to the summer visitation,awards the father visits in Kentucky during school breaks for "every Thanksgiving,Christmas, winter, mid-winter, spring, and Easter," effectively deprives the mother "ofany significant quality time" with the children, and is therefore "excessive" (Chamberlain v Chamberlain,24 AD3d 589, 593 [2005] [internal quotation marks omitted]; see Matter of Patrick v Farris,39 AD3d 864, 865 [2007]). While that provision takes into account the children'sneed to spend time with the father and his family, it does not take into account theimportance of their relationship with the mother and her extended family, in that itdeprives the children of contact "during times usually reserved for family gatherings andrecreation" (Matter of Nikolic v Ingrassia, 47 AD3d at 821). We note that thecourt-appointed forensic evaluator recommended that the parties share parenting timeduring major holidays such as Thanksgiving, Christmas, and Easter. There was nocontrary evidence that awarding all parenting time during these holidays to the fatherfurthers the children's best interests. The opinions of experts "are entitled to someweight" (Bains v Bains, 308 AD2d 557, 558 [2003]), and, under thecircumstances presented here, the Family Court should have awarded equal parentingtime to the parties for these school breaks. Accordingly, we remit the matter to theFamily Court to set forth a new visitation schedule regarding "Thanksgiving, Christmas,winter, mid-winter, spring, and Easter" that apportions those school breaks equallybetween the parties.
Moreover, the provision of the visitation schedule awarding the father the option ofvisits in Kentucky during four of the children's three-day weekend breaks creates anonerous burden for the children. This provision may place the children in the position oftraveling to and from Kentucky—a distance of more than 850 miles—overthe course of a mere three days. Such a schedule is too disruptive and not in thechildren's best interests (seeMatter of Welch v Welch, 39 AD3d 910, 911 [2007]; Anonymous vAnonymous, 120 AD2d 983, 984 [1986]; see also Matter of Nikolic vIngrassia, 47 AD3d at 821). We see no reason to disturb the Family Court'sdetermination that the father should have the option of exercising visits during four ofthe children's three-day weekend breaks from school, but it is in the children's bestinterests that such visits take place in New York, with the mother reimbursing the fatherfor one half of the reasonable transportation costs for the father's round-trip travelbetween Kentucky and New York with respect to the four three-day weekend visits.
Furthermore, as the father acknowledges, the order appealed from should haveincluded a provision affording the mother reasonable communication with the children,by computer or telephone or both, while they are visiting the father in Kentucky.[*4]
The father's remaining contentions are withoutmerit. Angiolillo, J.P., Chambers, Roman and Hinds-Radix, JJ., concur.