Aquitani v. Aquitani (In re a Custody Proceeding Under Article 6 of the Family Court Act)

2022 NY Slip Op 50730(U)

In the Matter of a Custody Proceeding Under Article 6 of the Family Court Act

Anna Aquitani, Petitioner, v. Caleb Aquitani, Respondent.

No. 123

Family Court, Tompkins County

June 14, 2022

Unpublished Opinion

Hon Scott A. Miller Family Court Judge

Petitioner Anna Aquitani (hereinafter "the mother") and Respondent Caleb Aquitani (hereinafter "the father") are the parents of the subject child Connor Aquitani (date of birth: XX/XX/14). ^[1]

This action commenced with the mother's filing of an Article 8 Family Offense Petition and an Article 6 Modification Petition on January 2, 2020. Following an ex parte appearance with the Petitioner on the same date, the Court issued a full stay-away temporary order of protection against the father in favor of the mother and child. On January 21, 2020, both parties appeared before the Court with counsel. The Court vacated its temporary order of protection and granted the father parenting time several times per week.

Six days later, on January 27, 2020, the mother filed another Article 6 Modification Petition, this time by Order to Show Cause, seeking to suspend the father's visitation due to a CPS hotline involving an allegation that the father sexually abused Connor ^[2]. Pursuant to this filing, the Court again suspended the father's visitation on January 28 2020. On February 10, 2020, the parties appeared before the Court with counsel. The father opposed the mother's petition. Both parties were questioned under oath. At the conclusion of the proceeding, the Court vacated its January 28, 2020 Order and reinstated the parties' prior shared placement week on/week off schedule.

On February 11, 2020, the father filed an Article 6 Modification Petition by Order to Show Cause setting forth concerns about the mother's mental health, erratic behavior, substance abuse, and history of fabricating allegations both against the father and John Dean, the father of her other two children. On February 14, 2020, pursuant to the father's filing, the Court ordered supervised visitation for the mother, restricted her parenting time to two four-hour visits per week, ordered her to undergo a substance abuse evaluation, and ordered her to undergo a mental health evaluation. On March 2, 2020, the mother filed an Answer and Affidavit in Opposition to the father's Order to Show Cause.

Over the pendency of the case, several more Orders to Show Cause were filed. The Court conducted a two-day evidentiary hearing on June 29, 2020, and June 30, 2020, for the purpose of determining an appropriate interim order. At the conclusion of the hearing, the Court removed the supervision requirement on the mother's visits and expanded her parenting time while continuing sole legal custody and primary placement with the father. ^[3]

A Fact-Finding Hearing was conducted by the Court on December 9, 2020, December 18, 2020, January 12, 2021, February 16, 2021, July 1, 2021, July 23, 2021, and February 10, 2022. The mother was represented by Attorney Chad Hammond, the father was represented by Attorney Kelly A. Damm, and the child was represented by Attorney Angelica Parado-Abaya of Citizens Concerned for Children, Inc. The Court heard testimony from Karrie Monroe, Diane Tripodi, Susan Funicelli, LMSW, Katie Peters, LMSW, Beth Lovejoy, LMSW, John Dean, Brian Driscoll, and the parties. Petitioner's Exhibits 1, 2, 4, and 6 through 23 were received into evidence. Respondent's Exhibits A through T, V, X, Y, BB, CC, DD, EE, II, KK, LL, NN, OO, RR, and SS were received into evidence. The Court took judicial notice of all prior Tompkins County Family Court orders, FCA § 1034 reports filed with the Court, and testimony given during the prior two-day evidentiary hearing. ^[4] On February 16, 2021, at the conclusion of the Petitioner's case, the Court dismissed the mother's Article 8 Family Offense Petition for legal insufficiency, leaving pending each party's Article 6 Modification Petitions. Prior to this Fact- Finding Hearing, there had never been a plenary family court hearing between these parties.

A Lincoln Hearing was conducted with the child and AFC on March 2, 2022. The Court reviewed the final written submissions of the father's counsel dated April 22, 2022, and the Attorney for the Child dated April 29, 2022. The mother's attorney did not file a final written submission.

The Court searched the statewide registry of orders of protection, the Sex Offender Registry, and the Family Court's child protective records, and has notified the parties and the attorneys of the results of these searches.

FINDINGS OF FACT

The fact-finding portion of these proceedings encompassed nine days of testimony, nine witnesses, and 55 exhibits. At first blush, one would think this Family Court is confronted with a task of such magnitude and complexity that all of the Court's finely tuned tools of discernment must be brought to bear in order to arrive at a properly constructed conclusion. Not so. What the Court has before it is a matter of utter simplicity. When all the superfluous is removed (and there was much), what is left is a simple truth. The father is a loving, fit, and excellent parent to the parties' now seven-year-old son Connor. The father has always been willing to engage the mother in co-parenting and continues to be willing to facilitate a loving relationship between Connor and the mother. The mother, however, is incapable of setting aside her animosity towards the father, and because of this she has consistently engaged in a pattern of making false allegations of child abuse against the father. The mother - in spite of an absence of evidence, and, in fact, evidence to the contrary - refuses to believe that the father is a good father and instead remains steadfast that the father has subjected the child to both physical and sexual abuse. In short, although this case presents the Court with extreme allegations, resolution of these allegations was nonetheless extremely easy.

The Court closely observed the testimony of the father and the mother over many days of trial. The father was credible in every respect. He presented as a loving, engaged, self-aware deeply reflective, and mature parent who genuinely places Connor's interests as paramount. He understands his strengths and weaknesses and is more than fit to be a custodial parent and role model to his son. The mother for the most part, on matters of significance, was not credible. She demonstrated little insight into her own shortcomings, has shown no growth as a co-parent, can only see the father in a negative light, refused to withdraw her baseless abuse allegations against the father, and demonstrated she will neither facilitate nor encourage a relationship between the father and the child. Furthermore, the mother associates with at least two adult men who have, at the mother's encouragement, threatened to harm the father because of this ongoing litigation.

The mother's behavior is nothing new. The mother has demonstrated a pattern that when she is angry with the man with whom she is in a relationship, she weaponizes their children either to inflict revenge or to gain control. When the mother became angry at her ex-husband Mr. Dean, the father of her older children, she also engaged in the same pattern of making false allegations during the course of family court litigation in an effort to gain a custodial advantage. Her false allegations failed in the past. They have failed again.

The case before the Court can best be summarized by one exhibit - Respondent's Exhibit CC, which is a photograph of the mother's fake "black eye" she created with make-up. The mother previously disseminated this photograph in an attempt to fabricate allegations of assault against the father. The falsity of this past scheme was quickly uncovered. Nothing has changed.

Caleb Aquitani, the father, has endured years of the mother's false allegations. When the father was informed by CPS that he was accused of sexually abusing Connor, he understandably began to cry. The father was clear, convincing, and completely credible to this Family Court when he testified that he never had nor would he ever harm or abuse his son. The mother failed to present a scintilla of credible evidence to support her allegations of abuse. Connor is known to have a big imagination, and the CPS investigator confirmed that any allegation made by Connor could not be taken as true based on the fact that Connor told such wild fantastical tales (e.g., Connor, at age five, claimed that he smoked cigarettes and drank alcohol). In short, it was quickly confirmed that Connor is a young boy with a huge imagination. The father is in tune with his son's prodigious imagination. The mother is not. The Court, however, does believe that Connor did in fact tell his father that, "Mommy wants me to tell stories so I can I live with her." This particular out-of-court statement attributed to Connor had the unmistakable ring of truth to it and was the only such out-of-court statement corroborated by other evidence. FCA §1046. The fact-finding evidence clearly demonstrated that the mother's pattern of behavior is that when she is angry with the father, she fabricates allegations of abuse and encourages their son to "tell stories" about the father.

The father lives with his fiancée Cathy, as well as the children in their household: Connor, Cathy's son William and their two young children together, Alex and Nicole. The father is employed in construction and Cathy owns her own business. The father did not hide his past. He admitted that he did have prior criminal convictions over the last 20 years for theft, assault, and burglary. He spent some time in state prison. The father and mother married in 2016. In 2017, while living...