Kelly v. Wachowiak

Carter, Kevin M.

At a term of the Family Court of the State of New York held in and for the County of Erie at One Niagara Plaza in the City of Buffalo, New York on April 23, 2015 CORRECTED
DECISION AND ORDER

(Supercedes all previous orders)

APPEARANCES

Catharine M. Venzon, Esq., Attorney for Petitioner
Audrey R. Herman Esq., Attorney for Respondent
Giovanni Genovese, Esq., Attorney for the Child Carter, Kevin M.

PROCEDURAL HISTORY

William W. Kelly III (hereinafter, "Petitioner") filed a petition on October 18, 2013, for custody of the children, Paris M. Kelly (born, August 19, 2004), and Zoe S. Kelly (born, October 26, 1999). Melanie Wachowiak (hereinafter, "Respondent") cross filed for custody on January 27, 2014.

Trial commenced on October 9, 2014 and concluded on April 23, 2015. A Lincoln Hearing was held and concluded on April 23, 2015

FINDINGS

The Court has considered the credibility and demeanor of the witnesses and evidence before it and due deliberation having been had thereon, makes the following findings:

The parties are not married. They lived together prior to September 2007. Respondent then moved to her mother's home. When the parties separated they scheduled access without the need for judicial intervention. On December 23, 2014, the Court entered a Temporary Order granting Petitioner primary custody of the children.

Petitioner graduated from Medialle College, Buffalo, New York. He has a Bachelors Degree in Management Information Systems. He is employed at Multisorb Technologies, 325 Harlem Road, West Seneca. New York ("Multisorb"). Petitioner has an annual income of $39,000.00. He has been employed by Multisorb since 1998. Petitioner purchased his current residence, 27 Garfield Street, Lancaster, New York. The residence is an 1,800 square foot, three bedroom, two full bath home.

Respondent was employed at TSA for 10 years. She is currently employed at Community Development Services where she has worked since 2013. After vacating the parties residence in 2007, Respondent lived with her mother between 2007 and 2009. She then moved to Garden Village Apartments on French Road, West Seneca, New York. Thereafter, Respondent moved to 3706 Walden Avenue, Lancaster, New York, On January 24, 2014, Respondent lived at 164 W. Grand Boulevard, Cheektowaga, New York. She currently lives at 70 Holland Avenue, Lancaster, New York.

The children have lived with Petitioner since October 2013. Zoe has limited access with Respondent. Paris visits Respondent on a weekly basis. For the past six (6) years the children have attended school in the Lancaster Central School District. Zoe currently attends Lancaster High School. Paris is a student at William Street School. The children are enrolled in counseling to help them address concerns relative to family dynamics. Zoe utilizes the resources of a counselor at Lakeshore Behavior to help her address her relationship with Respondent.

DISCUSSION

In New York State the courts have long held that the primary focus of the trial court when determining custody should be a resolution that would best serve the interests of the subject children by promoting their welfare, happiness, and optimum development. See, Matter of Hosteller v. Montayne, 30 AD3d 720 (3d Dept 2006); Defayette v. Defayette, 28 Ad3d 820 (3d Dept 2006); Kaplan v. Kaplan, 21 Ad3d 993 (3d Dept 2005); Canazon v. Canazon, 215 Ad2d 652 (2d Dept 1995); Scalia v. Scalia, 217 Ad2d 780 (2d Dept 1995); Eschbach v. Eschbach, 56NY2d 167 (1982); Friederwitzer v. Friederwitzer, 55 NY2d 89 (1982). The factors to be considered in determining a child's best interest include: (1) the continuity and stability of the existing custodial arrangement, including the relative fitness of the parents and the length of time the present custodial arrangement has continued; (2) quality of the children's home environment and that of the parent seeking custody; (3) the ability of each parent to provide for the children's emotional and intellectual development; (4) the financial status and ability of each parent to provide for the children; (5) the individual needs and expressed desires of the children; and (6) the need of the children to live with siblings.

In light of the evidence presented, this Court concludes that the Petitioner's application for custody should be granted. Although the Court finds that Petitioner and Respondent shared care of the children prior to October 2013, the Petitioner has provided the primary care as it pertains to medical, educational, and emotional welfare since then. Petitioner is and has been the current custodian since December 2014 when the Court entered a temporary order of custody. The children live with Petitioner in the his home that serves as their residence for school purposes. It is undisputed that they attend school in the Lancaster Central School District. It is also undisputed that they are doing well in their respective schools. Moreover, it is undisputed that it was not until recently that Respondent set up residence in Lancaster. There is no evidence that would lead the Court to conclude that the children are failing to thrive emotionally or academically while under Petitioner's care. Petitioner and the children have a loving and nurturing relationship.

Moreover, the evidence shows that Petitioner is able to meet the financial needs of the children. For the last sixteen years he has been gainfully employed at Multisorb where he earns approximately $39,000 per year. He provides the medical and dental insurance, and according to the proof, the children are current in their well visits and dental appointments. The current custodial arrangement is stable.

Respondent's living accommodations, while suitable, have not been stable. She has relocated her residence on five (5) separate occasions since moving out of the family home in 2007. While the Court does not find Respondent to be unfit, the record is not clear as to Respondent's financial ability to provide for the children. It appears from the testimony that Respondent has been employed at Community Development Services for over one and one-half years. However, the record is void of evidence relative to Respondent's earnings or projected earnings.

Important to the Court's determination is the relationship between the Respondent and the children. It is clear that Respondent and her youngest child, Paris, have a warm and loving relationship. However, the evidence shows that Respondent and the oldest child, Zoe, have a strained relationship; one that has resulted in the child attending counseling at Lakeshore Behavior and Respondent having limited access, if any, with her.

When the parties separated in 2007, they were able to work through their personal differences as it related to the care of the children. However, through the years they have been unable to maintain this relationship and have grown apart in their ability to make joint decisions.

Finally, the Court must take into consideration the sibling relationship. To that end, the Court gives great weight to the Lincoln Hearing. The children were interviewed separately. Each was responsive, insightful and credible. The evidence shows that the children have a loving and caring relationship and bond between them. This bond would be preserved by allowing the children to live together and not separating them.

CONCLUSION

Petitioner is able to provide a more stable environment to meet the children's emotional and intellectual needs as well as the essential needs for healthy living including food, shelter, clothing, and health care than is Respondent.

Based upon the foregoing, it is hereby

ORDERED that the application by Petitioner for sole custody of the children is GRANTED, and it is further

ORDERED that the application by Respondent for custody of the children is DENIED, and it is further

ORDERED that Respondent shall have independent access to the children's medical, dental, and educational records and providers and Petitioner shall keep Respondent appraised of the names, telephone numbers and addresses of the said providers; and it is further

ORDERED that Respondent shall have access with the Paris as follows:

(1) Four non-consecutive weeks during summer recess commencing July 1 to be arranged by the parties to accommodate their schedules (Sunday to Saturday);

(2) One-half of each school recess; and

(3) Five hours on Easter, Thanksgiving and Christmas Eve; and

(4) Five hours on Christmas Day; and

(5) Each Thursday evening at 7:00PM to Saturday morning at 10:00AM; and

(6) Reasonable and liberal weekly telephone access; and

(7) Access at other times as the parties agree and arrange, and it is further

ORDERED that Respondent shall have access with Zoe as follows:

(1) Reasonable and liberal access as arranged with the child, and if the child refuses access, then her refusal will serve as a change in circumstances for a modification of this Ordered paragraph;

(2) Zoe and Respondent shall enroll in joint counseling to address their strained relationship, and it is further

ORDERED that Petitioner shall four non-consecutive weeks during summer recess commencing July 1 to be arranged by the parties, and it is further

ORDERED that Petitioner shall have access every Father's Day, and it is further

ORDERED that Respondent shall have access every Mother's Day, and it is further

ORDERED that the party not having access on the children's birthday shall be entitled to five (5) hours access, and it is further

ORDERED that the children shall continue in counseling until successful discharge, and it is further

ORDERED that the parties shall complete a certified parent education program, and it is further

ORDERED that the parties shall refrain from making any disparaging remarks or comments about one another to or in the presence of the children. Dated: Buffalo, New York

August 3, 2015

/s/_________

KEVIN M. CARTER

Family Court Judge