M. S. v. C. S.

172 Misc. 2d 603, 660 N.Y.S.2d 277, 1997 N.Y. Misc. LEXIS 204
CourtNew York City Family Court
DecidedApril 9, 1997
StatusPublished

This text of 172 Misc. 2d 603 (M. S. v. C. S.) is published on Counsel Stack Legal Research, covering New York City Family Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
M. S. v. C. S., 172 Misc. 2d 603, 660 N.Y.S.2d 277, 1997 N.Y. Misc. LEXIS 204 (N.Y. Super. Ct. 1997).

Opinion

OPINION OF THE COURT

Sandra B. Edlitz, J.

[604]*604The parties were married on December 9, 1989 and lived together in Yonkers, Westchester County, New York, until the Respondent went to Ontario, Canada, with the children in or around August 1995. The Petitioner wrote a letter dated August 21, 1995, presumably for the customs and immigration officials, stating that he gave his permission for Respondent and the children to enter Canada until December 21, 1995. However, Respondent remained in Canada past that date.

In late 1995, Respondent filed for custody of the children in Canada. The trial court there assumed jurisdiction and awarded "interim interim custody” to her. An intermediate appeals court upheld the order but found that the children were not habitually resident in Ontario. Petitioner appealed.

By order dated August 13, 1996 (Kruzick, J.), the Ontario Court of Justice (General Division) reversed to the extent that Respondent was directed to return the children to New York. The court applied the Hague Convention on Civil Aspects of International Child Abduction, which controls international custody disputes, and to which both Canada and the United States are signatories. The Ontario court found, inter alia, that the children were habitually resident in the State of New York prior to their removal and that while Petitioner consented to the children going to Canada until December 21, 1995, their retention in Canada by Respondent after that date was wrongful. Judge Kruzick, in ordering Respondent and the children to return to New York, maintained Respondent’s "interim interim custody”, and directed Petitioner to provide Respondent with airline tickets, a two-bedroom apartment and $2,000 per month, plus medical services. This order was to remain in effect unless or until a New York court ordered otherwise. Pursuant to the Canadian order, mother and children returned to New York on September 23, 1996 and have been residing in an apartment in Yonkers during the pendency of this proceeding.

On September 18, 1996, M. S. (hereinafter referred to as the Petitioner or the father) filed a verified petition in this court seeking custody of his two children, Mark, born November 14, 1990, and Michelle, born August 1, 1992. On September 23, 1996, he also filed a verified petition seeking visitation with the subject children. C. S. (hereinafter referred to as the Respondent or the mother) filed a verified petition in this court on September 26, 1996 also seeking custody of the aforementioned children. The mother seeks to reside in Canada with the children. The father opposes this move as not being in the children’s best interests. He claims that such a move would [605]*605deprive him of regular and frequent access to his children. He also expresses concern that the living environment in Canada is inappropriate for the children.

A fact-finding hearing was held. Each party was represented by counsel. The children were represented by a court-appointed Law Guardian. The parties and Law Guardian waived clinical evaluations.

On January 6, 1997, this court directed Respondent not to remove the children from the court’s jurisdiction. It also reiterated that consistent with the Canadian order, it had assumed exclusive jurisdiction of this matter.

At trial, both parties testified. In addition, they each proffered the testimony of several witnesses. Several photographs, letters and other documents were also admitted into evidence.

Petitioner presented to this court as an honest and responsible person, genuinely interested in his children’s welfare. He testified to being a very involved parent from the day each child was born. He diapered them as babies and has always liked to play with his children, and participate with them in family gatherings and festivities. Petitioner’s brother and sister and their respective spouses testified to the close relationship the subject children have with their father as well as with their paternal grandfather, aunts and uncles and cousins, all of whom reside in Westchester County. In fact, Petitioner lives in the same house as his father. The children resided there from birth until their mother took them with her to Canada. Since the children returned from Canada last September, they have spent a considerable amount of time there with their father and grandfather.

Petitioner, contrary to Respondent’s assertions, stated that while he knew Respondent was going to Canada with the children in August 1995, he never knew of her wishes to remain there, and did not consent to her remaining there on a permanent basis. It is not disputed that during the one-year period that Respondent and the children were in Canada, Petitioner regularly and voluntarily sent them money, and made efforts to see them. According to his testimony however, he did not see his children until they returned to New York last September.

Respondent testified that she originally came to the United States around 1985-1986 to earn more money, married Petitioner in 1989, and remained here, except for a few visits to Canada. She also stated that when she left for Canada in [606]*6061995, she told Petitioner that it was permanent. At trial, she never articulated her reasons for leaving New York except to say at one point that her father’s illness was a factor. She went into great detail about her parents’ farm and equestrian center where she and the children lived from August 1995 until September 1996 when she was ordered to return to New York, and where they would continue to live if she were awarded custody. The farm and equestrian center house many animals, including over 30 horses, and several dogs, cats and birds. The house has been renovated to add more living space for the children. She admitted that many people and cars frequent the area for riding lessons and other purposes, and that the children have free access. She stressed, however, that the children have never been endangered by the animals or by the regular presence of many people on the farm. Respondent noted that she works at the farm giving riding lessons in addition to working about 44 hours per week as the manager of a pizzeria. When she is working, her mother is the children’s primary caretaker. Both children have learned to ride horses while in Canada. According to Respondent, Michelle is more enthusiastic about riding than Mark, who is more interested in playing hockey. Generally speaking, both children enjoy the farm and the various animals that live on it.

Respondent spoke fondly of Petitioner’s mother who passed away a few years ago. She conceded that her own mother is not a "huggy-kissy” person. This lack of affection by Respondent’s mother is borne out by the fact that Michelle told the Law Guardian that her maternal grandmother kisses her only in her dreams.

The court in the case at bar is presented with a family consisting of a husband, wife and two children. They lived together in Yonkers as an intact family from 1989 until August 1995 when the Respondent chose to move with the children to Canada, her native country. There is no divorce, and no previous order of custody except the interim order issued by the Canadian court, which sent the Respondent, the children and the case back to New York.

It is well settled that the sole criterion when questions of custody are confronted is the best interests of the child (Matter of Lincoln v Lincoln, 24 NY2d 270). This standard necessarily encompasses a myriad of factors such as psychological, economic, social and familial (Hatz v Hatz,

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Lincoln v. Lincoln
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Bluebook (online)
172 Misc. 2d 603, 660 N.Y.S.2d 277, 1997 N.Y. Misc. LEXIS 204, Counsel Stack Legal Research, https://law.counselstack.com/opinion/m-s-v-c-s-nycfamct-1997.