Petitioner, mother of the subject child filed a petition for modification of a prior order of custody under Article 6 of the Family Court Act. The petition was amended on June 11, 2018. A fact-finding hearing was conducted on February 11, 2019. At the conclusion of Petitioner's case, Respondent and AFC made an oral motion to dismiss her petition for failure to establish a prima facie case for modification.

Procedural History

On May 28, 2015, the parties entered into a final order of on consent of joint legal custody with primary physical custody to Respondent and visitation to Petitioner.^[FN1] Between July 2015 and May 1, 2018, the parties filed various modification, enforcement and violation petitions against each other, which were either withdrawn or dismissed for their failure to appear in court. On March 21, 2018, Petitioner filed a modification petition seeking sole legal and physical custody [*2]of the subject child, which was later amended on June 11, 2018.

Summary of Arguments:

Petitioner alleges that the following change in circumstances exist, sufficient to modify the prior order from joint legal custody to award Petitioner sole legal and physical custody of the subject child to Petitioner: Respondent has exposed the subject child to domestic violence in his home; Respondent currently has criminal actions pending against him for violating orders of protection; Respondent does not have a stable home for the subject child; Respondent is currently being investigated by the Administration for Children's Services (ACS) and Respondent does not produce the child for Petitioner's parenting time.

Testimony

On direct examination, Petitioner's testified that the final order of May 2015, granted her daily phone contact with the child at 7:30 PM and visitation three weekends per month, pick-up at 145th in Harlem, and holiday and summer time. The pick-up and drop off locations changed numerous times over the next 4 year due to Petitioner's inconsistent living arrangements.^[FN2] In 2016, the exchange location was changed to 161st Street Police Station in the Bronx, then again to 138th Street in the Bronx to allow Petitioner to pick up the child from school. Between March 2016 and December 2016, she only saw the child approximately five times, because Respondent would have the child picked up from school before she would arrive. When she would contact Respondent regarding the child being picked up, he would respond a day or two later stating that she was unreliable and did not know if she would be picking up the child from school. Petitioner admitted that she was traveling from Brooklyn to the Bronx to pick up the child and she was never late considering the order set forth a half hour grace period. If she was running late or beyond that time, she would notify Respondent.

In 2017, Petitioner withdrew her petition after making an oral agreement with Respondent to work out the visitation amongst themselves, because the pick-up in the Bronx became a burden considering she had five other children and her living arrangements were not consistent. Petitioner was unable to provide any details of the alleged agreement but testified that Respondent did not follow it. Petitioner would arrive at the agreed pick-up location and wait for an hour, but Respondent would never appear with the child, indicating that he did not know whether Petitioner would show up. In total, she only saw the child approximately twice between summer 2017 and December 2017. During the times she did see the child, she noticed the child's demeanor to be aggressive and disrespectful as the child was aware of the court proceedings, and Petitioner's incarceration. On one occasion, she observed a large black and blue mark on the subject child's lower back prompting her to take a photographs and call ACS.^[FN3] Petitioner called the ACS hotline and sent a photo. When she questioned Respondent about it, he initially denied hitting the child but later admitted to hitting the child with a belt because he not listening in school. Thereafter, Petitioner did not observe any other marks or bruises on the subject child.

Other times, the child would be produced to her with dirty or with "ill-fitting" clothing. She also expressed other concerns about Respondent not having a stable residence, having provided a [*3]different address to the court at each appearance. Petitioner also had concerns about the subject child's alleged exposure to domestic violence because of her own history with Respondent. However, she admitted that she never observed any incidents between Respondent and another woman in the presence of the child. She testified that in addition to the missed visits, she has not had daily phone contact, holiday or summer parenting time, per the original order. She did not file any petitions in 2017 because she would "get shut down" by the court and there were no repercussions for Respondent's alleged violations of the order.

From January 2018 to August 2018, Petitioner believed either by the parties or court order, the exchange location was changed again, this time to Essex Street on the J train line. However, Respondent continued to fail to produce the child and she only saw him approximately four times during this period. In March 2018, Petitioner filed a modification to change custody after Respondent was arrested and the subject child was temporarily placed in her care.^[FN4]

Petitioner testified that when she consented to the custody order of 2015, it was never her intention for Respondent to retain custody of the subject child. She was facing impending incarceration after being convicted in criminal court and needed to make arrangements for the child. As such, she signed a letter outside of court consenting to Respondent having physical custody of and authority to make medical and educational decisions for the child, which Respondent used in court to obtain custody.^[FN5]

On cross-examination Petitioner testified that in 2015, she filed approximately ten police reports for missed visits with the child.^[FN6] She went to jail in summer of 2015 and was released in March 2016. Petitioner did not file any police reports in 2016 and 2017 and only filed one violation petition from 2015 through 2017, because she felt that Respondent was not being held accountable for failing to follow the court order. Petitioner also conceded that she took no steps to provide a phone or tablet to be able to speak with the subject child, despite having communication issues with Respondent.

Petitioner admitted that the allegations relayed to ACS about her concerns for the child's safety with Respondent were unfounded and that the child was never removed from Respondent's care and no orders of protection were ever issued. Whenever Petitioner saw the child with dirty and/or ill-fitting clothes, she purchased clothes but never called ACS. Further, despite having an order of joint legal custody, when Petitioner was "alarmed" about the child's behavior, she spoke to her lawyer but did nothing further to address her concerns. Petitioner did neither spoke with the school staff nor looked into therapy for the child. When questioned about the stability of her housing situation, Petitioner admitted she has been relocated from the shelter twice in the past three years.

She testified that Respondent should have been fined a monetary fee of $50 for failure to produce the child. Petitioner acknowledged that she was late on one occasion to pick-up but [*4]never late for drop-off and later changed her schedule ^[FN7] in part to accommodate the subject child as she would be tired from work and picking up her other children and the subject child by 6PM was overbearing.^[FN8] She would leave work in Brooklyn, travel fifteen minutes to her home to change clothes, travel an hour to Queens to pick up one of her other sons and return him to their Brooklyn home before going to pick up the subject child at the 14th Street train stop. When asked why Petitioner did not bring her other child in Queens with her to pick up the subject child, she testified that she would arrive too early and would have to wait in Panera Bread and decided to take the child home instead. Petitioner now is employed from 11PM until 7AM.

Analysis:

The issue in this matter is whether Petitioner has made out a prima facie case to establish a significant change in circumstances to warrant a modification of a prior order of custody.

A petition to modify an existing order requires a two-part inquiry. The first or "controlling 'material fact' is whether or not there is a change in circumstances so as to warrant an inquiry into whether the best interests of the children would be served by modifying the existing custody arrangement." Robert OO. v. Sherrell PP., 143 AD3d 1083, 39 N.Y.S.3d 541 (3rd Dept. 2016); Sergei P. v. Sofia M., 44 AD3d 490, 843 N.Y.S.2d 603 (1st Dept. 2007). Once a change in circumstances has been demonstrated, "the parent then must show that modification of the underlying order is necessary to ensure the child's continued best interests." Schmitz v. Schmitz, 139 AD3d 1123, 31 N.Y.S.3d 295 (3rd Dept. 2016); Christopher H. v. Taiesha R., 166 AD3d 548, 88 N.Y.S.3d 181 (1st Dept. 2018).

In the case at bar, both Attorney for Respondent and AFC argue that Petitioner has failed to establish a change in circumstances at trial. "When deciding a motion to dismiss at the close of a petitioner's proof, the court must accept the petitioner's evidence as true and afford the petitioner every favorable inference that could reasonably be drawn from that evidence, including resolving all credibility questions in the petitioner's favor." David WW. v. Laureen QQ., 42 AD3d 685, 686, (3rd Dept. 2007); see also C.H. v. F.M., 130 AD3d 1028 (2nd Dept. 2015).

In affording Petitioner every favorable inference herein, it must be noted that she presented little to no testimony or evidence concerning the allegations in her petition and easily conceded that none of her allegations, which were investigated by ACS, were substantiated. Instead, her testimony focused more on issues concerning the parties' court order visitation. At times, her testimony was inconsistent concerning the times and locations of the exchange of the subject child, much of which appear to have been arranged by verbal out of court agreements between the parties. Her testimony also revealed that she was often late to the pickups, because she incorporated the grace period into the scheduled pick up time or mismanaged her time by running various errands prior to her scheduled pick up.

Inability to arrange the exchange of a child for parenting time, due to one's irregular personal schedule or other obligations, is not a basis to find a change in circumstances as required to modify an order or custody.

Holding

In due consideration of all relevant factors presented in this matter, this court finds that [*5]Petitioner has not presented a prima facie case at trial.

Based on the foregoing, IT IS HEREBY ORDERED that the petition for modification is denied.