Damian S. C. v. Julie S.

2021 NY Slip Op 51177(U)

In the Matter of a Proceeding Under Article 6 of the Family Court Act, Damian S. C., Petitioner, v. Julie S., Respondent.

Docket No. V-15538-2018

Family Court, Kings County

December 7, 2021

Unpublished Opinion

Javier E. Vargas, J.

The mother was represented by Ursula Gangemi, Esq., 7820 3rd Ave Brooklyn, NY 11209, Phone: (718) 238-8855 ursulagangemiesq@yahoo.com; the Father was represented by Clover Barrett & Associates P.C., 338 Atlantic Ave. Brooklyn, NY, tel. (718) 625-8568 cbarrettpc@aol.com.

Papers Numbered

Summons Petition for Custody & Exhibits Annexed1

Summons Petition for Custody & Exhibits Annexed2

Exhibits admitted in Evidence3

Court Proceedings Recordings4

Written Trial Summations5

Upon the foregoing papers, the evidentiary virtual bench trial presided by the undersigned from December 9, 2019 to July 27 2021, and for the following reasons, the Petition by Petitioner Damian C. (hereinafter "Father"), for joint legal custody of the subject Child, is granted, and the Cross Petitions for sole physical and legal custody and permission to relocate to the state of Florida by Respondent Julie S. (hereinafter "Mother"), are denied in accordance with the following decision.

I.

The Father and Mother are both college-educated individuals who met as co-workers at the Federal Bureau of Prisons in Manhattan, New York, and began a romantic relationship in May of 2014. After dating for a while, the parties decided to have a child by in-vitro fertilization because the Mother was experiencing difficulties getting pregnant. The parties agreed to use the eggs from a third-party to be fertilized by the Father's sperm. He became intimately and actively engaged in the in-vitro pregnancy process, which was initially estimated to cost about $50, 000, and to which he contributed $30, 000. They traveled to North Carolina, but the insemination apparently took place at New York University Langone Hospital in Brooklyn. During the process, the Father administered injections to the Mother and attended numerous doctors and hospital visits due to medical complications.

Although the Mother was eventually successful in becoming pregnant around September 2017, it seems that unfortunately the stress of the procedure ruptured the parties' relationship, yet the Father remained involved after their separation in December 2017. Indeed, when the Mother got admitted to the hospital five months into her pregnancy, the Father took a family leave of absence from his employment, and stayed with her at the hospital until she went into labor and prematurely gave birth to the parties' Child on February 18, 2018. Though the Mother was discharged soon after the birth, the Child's premature birth required him to remain in an incubator for four months receiving oxygen and a feeding tube at the hospital's Neonatal Intensive Care Unit, where both parties visited him almost daily until he was discharged to the Mother on or about June 17, 2018.

Prior thereto, the paternal relatives' constant involvement at the hospital apparently caused frictions with the Mother, who began to reduce the Father's time with the Child. The Mother did not want the Father's family to see the Child; only the Paternal Grandmother Ellen A. (hereinafter "Paternal Grandmother") managed to see the Child. As a result, by Petition dated June 15, 2018, two days prior to the Child's release from the hospital, the Father commenced the instant proceeding against the Mother seeking joint custody in Kings County Family Court, alleging that the "Child was born prematurely and has been hospitalized since birth covered under his medical coverage," and that the Mother "is constantly trying to separate him from the Child in various ways." Essentially, the Father claimed that the Mother had engaged in actions intended to block his access and prevent his meaningful participation in the Child's life. That day, the Paternal Grandmother also filed a Petition for Grandparent Visitation alleging that the Mother was being vindictive by not allowing her to have any physical or emotional contact with the Child.

The Father and Paternal Grandmother appeared to argue their emergency requests before Kings County Family Court Judge Judith Waksberg on June 18, 2018. The Father reported to the Judge that the Child had been out of the hospital for days but that the Mother was not involving him in the Child's life. Contemporaneously, the Mother obtained a Temporary Order of Protection against Father's sister for her alleged actions at the hospital. Since the Undersigned was presiding over that initial family offense case involving the paternal aunt and the Mother, Judge Waksberg respectfully referred the case to the instant Judge for further proceedings. Sometime thereafter, the Father became a Customs Officer with the U.S. Department of Homeland Security and is involved with the National Guard at least one weekend a year. Based on this, on June 25, 2018, the Mother filed a Cross Petition for sole legal and physical custody of the Child, on the grounds that "as a member of the armed services," the Father is often deployed and is away months at a time, that he was "admitted to a mental institution at one time, that he has a gun at all times," has stated to friends "on two occasions that he wanted to kill himself," and finally that the Child has serious medical conditions and numerous medical appointments which she can only care for.

On July 30, 2018, the Father, Paternal Grandmother, their attorney and the Mother appeared before the Undersigned. After noting that the Child was born with serious health issues, the Father reiterated to the Court that he had access to the Child in the hospital, but when the Child was released to Mother's care, she has refused to allow him access. The Mother explained that Father's family was harassing her and calling her names. The Father requested unsupervised visits, however, Mother indicated that she would only agree to supervised visits because the Child had a stroke in the hospital and was "sickly." The Court issued a Temporary Order of Visitation (Vargas, J.) awarding the Father visitation for two hours every Saturday supervised by the grandfather, Reynaldo D., at the maternal grandparents' home. The Father was also encouraged to accompany the Mother on doctor's appointments and physical therapy, as well as any other visitation as agreed upon with the Mother.

On August 17, 2018, the Father and Paternal Grandmother, their counsel and Mother appeared. The Mother asked for an adjournment to hire an attorney, and Father requested longer day visits on Saturdays. The Mother then presented a letter from her doctor to the court and opposing counsel, indicating that the Child is being fed only breastmilk and can only be away from her for two to three hours. She agreed to increase the time to three hours and the Court modified the temporary order to reflect the same. The case was adjourned to September 4, 2018 for the Mother's attorney to appear. On September 4, 2018, Father, Paternal Grandmother and Mother appeared with their respective counsels. Upon objection by the Mother's counsel regarding a possible conflict by opposing counsel in representing both the Father and Paternal Grandmother, the Father's counsel conceded that she will represent him only, and renewed his application for unsupervised visitation with the Child. While the Mother again objected to unsupervised visits, she agreed to one additional day for up to three hours. The Court issued a new Temporary Order of Visitation (Vargas, J.), allowing the Father supervised visits on Saturdays, Mondays and Wednesdays for three hours each day, and any other visits as agreed upon by the parties supervised by the maternal grandparents. Trial dates were scheduled for December 6, 2018 and December 12, 2018.

On December 6, 2018, the parties and counsel appeared representing to the Court that they would like to reach a settlement and vacate the trial dates. The Court modified the Temporary Order of Visitation (Vargas, J.) awarding Father additional visitation every Saturday from 10:00 a.m. to 6:00 p.m. with visits to be supervised by Paternal Grandmother. The Father continued to have weekday visits on Monday and Wednesday that were supervised by the maternal grandparents. The Court vacated the second trial date and adjourned the case to March 6, 2019 for further conference.

The parties and counsel appeared on March 6, 2019, reporting that the case was approaching settlement. The parties consented to modifying the Temporary Order of Visitation (Vargas, J.) to allow Father to finally have unsupervised overnight visits from Friday at 6:00 p.m. to Saturday at 1:00 p.m., and the Court adjourned the case to April 16, 2019 for possible settlement. On April 16, 2019, the Father appeared with his attorney and Mother appeared with new counsel. The parties promisingly consented to expand overnights on alternate weekends from Friday at 6:00 p.m. to Sunday at 6:00 p.m., and every Wednesday evening, at Father's residence in the presence of Paternal Grandmother, commencing on April 26, 2019.

Despite the repeated settlement claims, on April 24, 2019, the Mother surprised everyone by filing a second Petition for sole custody with permission to relocate to the State of Florida with the parties' Child. Alleging that she had a pending job offer in Florida, the Mother stated that the Child's health would be better cared for in Florida and that she has access to more family resources there. On the next court appearance of June 25, 2019, the Mother, her attorney and Father's attorney appeared, but the Father did not appear. The parties and counsel appeared next on September 18, 2019, when the Father...