In this proceeding, petitioner-father, I.D. seeks to modify a prior order of Bronx Family Court, dated April 24, 2015, which continued an order of joint legal custody for the parties' son, granted respondent-mother, L.Z. primary physical custody, and granted a final order of visitation to the father. For the following reasons, the court finds that it is in the child's best interests to modify the order and grants the father sole legal and physical custody of the child and a final order of visitation to the mother.

Pursuant to the parties' judgment of divorce, entered on or about November 5, 2012, the parties have joint custody of their son, J.D. (DOB: 12/06/2007). Their son was to reside primarily with respondent-mother, L.Z. and petitioner-father, I.D. had reasonable rights of visitation. Following a modification petition, on April 24, 2015, Bronx Family Court issued an [*2]order on consent, modifying the judgment of divorce to the extent of setting forth a regular weekend visitation schedule for the father and a holiday access schedule.

On July 23, 2015, the mother filed a petition seeking to modify custody, stating that she was moving to another country and wanted the father to have physical custody of their son. On September 1, 2015, Family Court issued a temporary order of physical custody to the father on consent. That order was continued through January 12, 2016 and included a visitation schedule for the mother. On January 12, 2016, the mother's modification petition was dismissed without prejudice as she failed to appear in court.

On June 3, 2019, the father filed a petition seeking to modify visitation and to obtain a passport for his son. He alleged that the mother refused to cooperate in obtaining the passport and he sought a visitation schedule for the mother similar to the schedule forth in the order discontinued on January 12, 2016.

Separately, on June 19, 2019, the father filed a petition seeking to modify custody based on his allegation that the child had been living with him since August 2015. Based on this alleged change of circumstances, the father sought sole legal and physical custody.

On July 2, 2019, the mother filed a petition for a writ of habeas corpus seeking the return of the child to her pursuant to the judgment of divorce and April 24, 2015 order. In that petition, the mother acknowledged that the child had lived with his father for approximately 3 years, stated that she returned from Africa in November 2016, and that the father refused to return the child to her at that time. She also stated that she permitted the child to live with his father when she traveled to Africa.

This Court directed the child to be produced in court, assigned an attorney for the child, and thereafter ordered that he continue to primarily reside with his father and visit his mother on alternate weekends.

A trial was held on October 31, 2019 at which both parties testified. At the start of the trial, the parties stipulated that a substantial change of circumstances had taken place and the issue at trial was the best interests of the child. The Court took judicial notice of the parties' judgment of divorce, and all relevant petitions filed and orders issued in Bronx Family Court. In evidence were the child's school records and a schedule prepared by the father.

A. Father's testimony

The court generally finds the father credible. His testimony was consistent, detailed and forthcoming.

The parties were married in 2005 in Africa, and they divorced in 2012. At the time of the divorce, the mother had custody of the child and the father visited him on alternate weekends. In 2015, however, the situation changed when the mother sought to move to Africa with her new husband. The mother therefore filed a modification petition and the father was granted a temporary order of physical custody. Although that proceeding was later dismissed, the child continued to live with the father through the present time.

According to the father, he now lives with his current wife, who he married in 2013, and his son. They reside in a two-bedroom apartment and the child has his own room. The child is 11 years old and in the sixth grade at Immaculate Conception School. He has attended that school since Kindergarten and it is approximately a 5 minute walk from the father's home. The child does well in school. Specifically, the father explained that the child's grades have improved since 2015. The father noted that the mother enrolled the child in his school in 2011.

The father works as a patent examiner for the US Patent and Trademark office and the child is covered under his employer's health insurance. The father's position permits him to work from home and he is home when J.D. leaves for school and when he returns from school.

The child regularly sees a pediatrician and dentist, and, because he wears eyeglasses the child also has his eyes checked annually. Since August 2015, the mother has not asked about any of these medical appointments. The child also receives report cards regularly but the mother never asks about them; the father usually sends her a picture of the reports. The father attends the child's parent-teacher conferences but the mother does not attend them nor does she ask about them. The father has never advised the child's doctors or teachers not to speak with the mother.

Previously, the mother had taken the child to different doctors. Since 2015, the father insisted he advised the mother when he took the child to his new doctors. However, he did not specifically provide her information for the new doctors.

The child is also involved in various extracurricular activities including taekwondo, swimming, and coding and programming. The father pays for these activities and either he or his wife bring the child to them.

In 2019, the parties informally arranged for the mother to see the child every other weekend. However, between January and July of 2019 the mother only saw the child for 9 out of 14 weekends. She also did not see him for Mother's Day. The father did not keep a record of the mother's visits between 2015 and 2018. The father also denied that he kept the mother from visiting their son and noted that he was amenable to switching weekends or changing the schedule.

In June 2019, the father filed a modification petition because the mother refused to cooperate in obtaining the child's passport, and another petition so he could be granted sole custody and to have a consistent visitation schedule for the mother. He also filed a petition for child support. The father wanted to have a passport for the child because he promised to take him on a vacation if the child made the honor roll. He explained this to the mother but she would not agree to cooperate. In fact, the mother told him she would not permit the child to travel because the father didn't let her travel with the child to Africa. The father noted that he had objected to the mother's travel because she intended for the child to be raised by the maternal grandmother in Africa.

On July 2, 2019, the parties appeared on the child support matter and shortly thereafter the father received a notice that the mother wanted the child returned to her.

The father is seeking sole legal and physical custody of his son and a final order of visitation for the mother. He stated he was confident that he can continue to be his son's primary caretaker. He would have no objection to the mother having access to the child's medical and educational records or to providing her with a full itinerary of vacations with their child. He would also be okay with the child speaking to his mother during the week on his cell phone.

B. Mother's testimony

The court finds the mother's testimony to be credible in some regards but finds that in certain respects her testimony was evasive, contradictory, not forthcoming, and conflicted with sworn petitions she filed. For example, she could not state in which year she married her current husband. Most concerning, she was entirely evasive and incredible regarding the dates of her travel to Africa and with regard to what she had stated in her own sworn petitions filed in this Court.

The mother explained that both parties and their son resided in the father's current [*3]residence until the divorce in 2012. Initially, the father left the home but then in 2014 she decided to move elsewhere with the child and the father moved back into the apartment.

In the summer of 2015, the mother decided to allow the child to live with his father. She made this decision because she was to deliver another child and lost the child in the delivery room at the end of 2014. She wasn't feeling well in this time period and received mental health treatment. In addition, she had high blood pressure and couldn't care for her son as well.

Separately, the mother testified that she had difficulty communicating with the father, was weak and did not want to continue fighting with him about their son. She also observed that their son had been "fragile" since their divorce and thought it would be best for the father to take care of the child as she didn't want the child to see her in the "state she was in." Finally, she wanted to visit her parents in Burkina-Faso.

Regarding her trip to Africa in 2015, the mother insisted it was a planned vacation so she could see her parents and the child could meet his grandparents. She stated she provided the father with a detailed itinerary. However, the father would not agree for the child to go and she ultimately went alone.

The mother claimed that she was only in Africa for a couple of months and that when she returned in early 2016 she wanted the child to come live with her. However, the father refused to allow the child to come live with her as he believed he had custody at that point. The mother claimed that she did not consent to the temporary order of custody granted to the father in 2015.

On cross-examination, the mother claimed that she left for Africa at the end of 2015 and returned in early 2016. She denied that she traveled there with her husband. When faced with the petition for a writ of habeas corpus she filed, the mother could not explain why the petition she swore to and signed stated that she returned from Africa in November 2016. She could not state with any precision when she traveled but continued to insist she was only away for 2 months. The mother was similarly evasive and not forthcoming when asked about her July 2015 petition which stated she planned to move to Africa. Nor could she bring herself to honestly admit that the July 2015 petition she filed was requesting a modification of custody based on her planned move to Africa.

The mother clarified that she only made one trip to Africa between 2015 and 2016 and ultimately conceded that based on the timeline and the statements in her petitions, the trip she took would have lasted between fifteen and sixteen months.

The mother also claimed not to be in a relationship with someone either before or after 2015 and denied being married to someone between 2014 and 2016. At the same time, she testified that she married someone in New York after 2012 but could not state in which year that took place. She also noted that she is still married to that same person. Oddly, she also stated that she did not know for which years she had a valid passport.

After she returned from Africa, she saw her son approximately every 2 weeks but it was also limited by the father who allowed it when he felt like it. On certain weekends when she came for visitation, the child would not be unavailable and was not home. On some of these occasions, the father told her the child was in Pennsylvania.

The mother explained that she did not come to court to deal with these custody issues until 2019 because she was busy with work and hoped the parties could resolve this on their own. She denied filing the petition for a writ of habeas corpus as a response to the father's child support petition. Yet, she admitted filing the petition on the same date she attended a child support hearing on July 2, 2019.

The mother also recognized that her communication with the father was worse than it had been in the past. For example, she claimed that the father did not provide her information about the child's medical appointments even though she sought such information a couple times a month. She denied that the father told her about his planned trip in connection with the need for the child's passport.

She also claimed that the father did not give her much information about the child's education except for occasionally sending her the report card. He also did not tell her about the child's extracurricular activities. However, she claimed to make efforts to learn how her son was doing in school by contacting teachers directly.

Yet, the mother could not recall the name of her son's teacher this year. Nor could she recall the name of his 5th grade teacher. At the same time, she claimed that she spoke to these teachers several times. She also contended that she had not attended any parent-teacher conferences this year because she was busy looking for work. She admitted she made no efforts to attend the conferences the prior year.

The mother seeks a shared custody scenario in which the child would split his time equally with both parents. Specifically, she would have the child split each week approximately in half. For example, the child would spend 3 days with the father and then 4 days with her in a given week. She also believes it would be better for the child to live with her because he is not being supervised by the father. She was also concerned that the child was traveling to Pennsylvania and California and she was not given information about those trips.

The mother currently resides in an apartment with her sister, her sister's husband and her 2 nephews. This residence is approximately 30 minutes from her son's school. When the child comes to visit her, he shares a room with her and her 2 nephews. The mother also claimed that based on her conversations with the father, there was a space issue in the father's apartment.

In the past year the mother lived off her savings and support from her sister after she was laid off from her nurse's aid position. In the past, she worked as a nurse's aid and her hours were from 9 AM until 5 PM. She no longer wants to work in that field and plans to work in early childhood education.

The mother currently works at an afterschool program from 2:30 PM until 5:30 PM each day of the week. In addition, she attends school in the evening on Mondays and Wednesdays from 6 PM until 9:30 PM. She recognized that her son was in school until at least 2:30 PM which is when she begins her work.

A. Custody

As noted, the parties stipulated that there had been a change of circumstances and thus the sole issue before the court is the best interests of the child. Once a change in circumstances has been demonstrated, or, as here, stipulated to, "the parent . . . must show that modification of the underlying order is necessary to ensure the child's continued best interests." (Matter of Menhennett v Bixby, 132 AD3d 1177, 1179 [3d Dept 2015]; see also Christopher H. v. Taiesha R., 166 AD3d 548 [1st Dept 2018]). Thus, the Court will proceed to the best interest standard [*4]and a consideration of the totality of circumstances.

No parent has a prima facie right to custody over another parent and custody awards must be based only on the child's best interests and in promotion of the child's health and happiness. (Domestic Relations Law §70[a]). No one factor is determinative of custody; rather, the Court is required to consider the totality of the circumstances. Among the factors to be considered are the respective ages of the children, the financial circumstances, the home environment of each parent, the parental fitness of each parent, the preferences of the children, and a goal of keeping siblings together. (See Eschbach v. Eschbach, 56 NY2d 167, 172 [1982]). When applicable, the Court must also consider the length of time of any prior custodial arrangement and ensure stability for the children. (See Friederwitzer v. Friederwitzer, 55 NY2d 89, 94 [1982]).

In considering the totality of the circumstances, the court considers the fact that the child has resided with his father since the end of 2015, has his own bedroom in that residence and lives approximately 5 minutes from his school. In addition, the court considers the fact that the father appears to be more financially stable and has greater flexibility in his work schedule allowing him to be available to his son throughout the day. In contrast, the mother does not have a full-time occupation, works in the afternoons and attends school on some evenings and would thus be unable to tend to the child's needs after school such as taking him to activities. Further, the mother does not have her own residence and the child would not have his own space were he to live with the mother, her sister and the child's cousins.

Notably, the child is thriving in the father's home and is excelling in school. The father has also demonstrated an interest in both the child's academics and his extracurricular activities. On the other hand, the mother has made at best minimal efforts to stay involved in her son's schooling and activities.

The child through his attorney has expressed a preference to remain living with his father. While not determinative, the expressed wishes of the child are significant, and the Court has given consideration to his age and maturity.

Although the court recognizes the prior custodial arrangement, and that the mother served as a competent primary caretaker in the past, directing the child to live with his mother after living more than 4 years with his father would be extremely disruptive to his life. His home and daily life has been with his father for a significant period of time. Therefore, the factor of stability weighs in favor of granting the father custody.

Although the parties may have had some difficulties communicating, the Court is of the opinion that the father is able to facilitate a relationship between the mother and their son going forward. It is also expected that the father will keep the mother informed regarding the child's educational and medical issues.

Finally, while the mother had difficulty confronting and admitting some of her actions at the trial, the Court finds that the mother was absent from this country for a significant period of time. It is certainly understandable that after suffering the loss of a child the mother had a normal human reaction to such a loss, sought mental health treatment, and desired to see her family in Africa. Yet, it appears it is not easy for the mother to accept the reality that her absence impacted her role as primary custodial parent and impacted her son's life. However, the court notes that the mother ultimately acted in her son's best interests when she recognized he should live with his father in the aftermath of her loss.

Based on the totality of the circumstances, the father is granted sole physical and legal [*5]custody. It is also ordered that neither party is to relocate the child's residence outside of New York City, and that the mother is entitled to independent access to the child's educational and medical records and will be notified by the father of any significant decisions made for the child.

B. Visitation

It is well settled that non-custodial parents have a right to visitation with their children, that such visitation is a joint right of the noncustodial parent and children, and that the noncustodial parent plays a valuable role in guiding and loving their children. (See Weiss v. Weiss, 52 NY2d 170, 175 [1981]).

Initially, the court does not find that it is in the child's best interests to have a split week schedule as proposed by the mother. The child's primary residence shall be with the father. However, commencing January 17, 2020, the mother shall have alternate weekend visitation from Friday after school until Sunday at 8 P.M. The pickup shall be at school and the dropoff shall be curbside at the father's residence. Both parties shall have liberal phone access with the child when he is with the other parent.

1) In addition, the parties shall share the holidays and school breaks as follows:

a. Mother's Day: The mother will have Mother's Day each year

b. Father's Day: The father will have Father's Day each year

c. February school break: In even years, the mother will have the February school break. In odd years, the father will have the break.

d. April school break: In Even years, the father will have the April school break. In odd years the mother will have the break.

e. Easter: In even years, the father will have Easter Day. In odd years, the mother will have Easter Day.

f. Thanksgiving: In odd years, the father will have Thanksgiving Day. In even years, the mother will have Thanksgiving Day.

g. Christmas: In odd years, the father will have Christmas Eve and the mother will have Christmas Day. In even years, the mother will have Christmas Eve and the father will have Christmas Day. In addition, in even years the father will have the December school break from the last day of school until New Year's Day at 3 PM. In odd years, the mother will have the December school break from the last day of school until New Year's Day.

h. Memorial Day: In even years, the mother will have Memorial Day. In odd years, the father will have Memorial Day.

i. Labor Day: In even years, the father will have Labor Day. In odd years, the mother will have Labor Day.

j. Child's Birthdays: On the child's birthday, if the birthday falls on a weekend day, the mother shall have from 10 AM until 4 PM in even years and from 4 PM until 8 PM in odd years, and the father the remaining time on that day. If the birthday falls on a weekday, the parties may alternate evening time on that day, with the father having it in even years and the mother in odd years.

The mother shall also be entitled to 2 weeks of vacation with the child each summer (July -August). The mother shall notify the father of the weeks she is selecting by May 15th of each year. Both parties will be permitted to travel outside of the state and country with the child on advance notice to the other parent with a full itinerary of travel and contact information.

Accordingly, it is

1) ORDERED that the father's petitions, V-16972-19/19A and V-16972-19/19C are granted; and it is further

2) ORDERED that father is granted a final order of sole physical and legal custody of the child; and it is further

3) ORDERED that neither party is to relocate the child's residence outside of New York City, and that the mother is entitled to independent access to the child's educational and medical records and will be notified in advance by the father of any significant decisions made for the child.

4) ORDERED that a final order of visitation is awarded to the mother; and it is further

5) ORDERED that the parties may modify the visitation schedule on mutual consent in writing.

This constitutes the decision and order of the court.