Margaret M.C. v. William J.C.

41 Misc. 3d 459
CourtNew York Supreme Court
DecidedOctober 31, 2012
StatusPublished

This text of 41 Misc. 3d 459 (Margaret M.C. v. William J.C.) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Margaret M.C. v. William J.C., 41 Misc. 3d 459 (N.Y. Super. Ct. 2012).

Opinion

[460]*460OPINION OF THE COURT

Paul I. Marx, J.

On August 16, 2012, this court had the privilege of meeting twins, WC. and J.C., and M.C. at a Lincoln hearing1 in furtherance of this court’s quest to determine the best interests of the children so as to render a custody decision as part of the parties’ impending divorce. The Lincoln hearing marked the culmination of the custody portion of the trial. This decision and order is intended to resolve the parties’ dispute concerning custody of, and parental access to, the children.

It is important to note that, as this court informed the children, they are in the enviable position of having two very capable, loving and doting parents. This court has no doubt that whatever decision is rendered, the children (who are mature beyond their years, intelligent, poised and well spoken) will continue to thrive. Nevertheless, because the parties cannot agree on parental access and custody issues, this decision and order has become necessary.

The matter was tried to this court on March 21 and 22, May 2, June 21 and August 15, 2012. Plaintiff was represented by Sheila Callahan O’Donnell, Esq.; defendant was represented by William Larkin, III, Esq.; and the children were represented by Martin R Goldberg, Esq. Both parties testified at trial, as did Marc S. Mednick, Ph.D., a forensic psychologist whose report was admitted into evidence pursuant to Uniform Rules for Trial Courts (22 NYCRR) § 202.16 (g) (2) on plaintiffs case. Dr. Med-nick also testified in court and was cross-examined on defendant’s case. Kathleen W. and Kim W, who were previously employed by the parties as mother’s helpers, testified on plaintiffs case. Mary C., the children’s paternal grandmother, and Christine C., defendant’s girlfriend, testified on defendant’s case.

Procedural History

The parties were married in 1996. Plaintiff filed this action for divorce in 2009. The parties began living separate and apart in 2009. As noted above, they have three children who are the subject of this order, W, J. and M.

Central to the dispute is the plaintiffs reasonable and understandable desire to have access to the children on weekends during the school year; something she has been deprived of for [461]*461nearly three years (except when defendant agreed) as a result of what was intended to be a temporary order issued by the Honorable David Ritter (Justice of the Supreme Court, retired) on September 1, 2009. In the main, the Ritter order awarded custody of the children on weekdays to their mother and on weekends to their father. This decision and order is designed to replace the Ritter order.

The Parties’ Positions

In their proposed dispositions, at trial and in their posttrial letter submissions, each party requests the court to decide custody differently.

The court appointed forensic evaluator, Marc S. Mednick, Ph.D., observed in his June 11, 2011 report that “the children benefit from the active engagement of both parents.” He notes that “[t]hey could well tolerate, and benefit from, a custodial plan that approximated a split in time between the parties.” While he notes that this “might not be practical to do . . . the limits here have more to do with logistics, and Mr. C.’s availability” because it “is not at all clear . . . that he could make himself available enough for a 50-50 split in time to work.” He recommends, “at a minimum, they need an alternate weekend, from Thursday to Monday, with at least one midweek overnight on the alternate week.” He adds that “W would benefit from at least one additional day with his father, and the girls would have that evening with their mom.” Finally, he notes that “[i]f Mr. [C.] could adjust his schedule to be home more, that would benefit the children. [Similarly,] if they could experience their mother shifting to a work role, even part time, she could model career relevant behavior to the children.”

Through her counsel, Mrs. C. urges that,

“[g]iven the fact that Mrs. C. has been a superlative mother, has encouraged and strengthened the children’s relationship with their father at all times, has never interfered with the father’s access with [sic] their children, and was willing to accede to a very liberal access schedule (even though that access schedule involved the grandparents because the father is not available) that she should be granted sole physical custody of the children”; “Mr. [C.] should be given the access schedule that his hand picked evaluator suggested as a schedule.” (Post-trial submission of Ms. O’Donnell dated Sept. 26, 2012.)

[462]*462In essence, she asserts that Mr. C.’s employment obligations preclude this court’s ability to award custody of any significant duration to him.

Mr. C.’s counsel, not surprisingly, urges a different custody arrangement. “Both the children and Dr. Mednick have requested and recommended that [there should be] a shared custodial arrangement.”

“[Jjoint legal and physical custody should continue with the parties sharing time with the children alternating weeks from Friday after school to the following Friday. With an alternating schedule, there is no need for a different summer vacation schedule. The parties shall alternate the major holidays, Father’s Day shall be spent with the Father, Mother’s Day shall be spent with the Mother, and both parties shall have access to the children on the children’s birthdays.” (Posttrial submission of Mr. Larkin dated Sept. 26, 2012.)

Mr. Goldberg, the Attorney for the Children, suggests that the court award “joint legal custody and joint physical custody with the children alternating with each parent on a one week on and one week off basis.” (Posttrial submission of Mr. Goldberg dated Sept. 10, 2012.)

Discussion/Analysis

In deciding questions of custody, the court must determine what is in the children’s best interests and what will best promote the children’s welfare and happiness. (Eschbach v Eschbach, 56 NY2d 167 [1982].) The paramount concern in a custody dispute is to determine the best interests of the children based on a consideration of all the relevant facts and circumstances. (Id.)

Factors for the court to consider in determining what is in the children’s best interests include: the quality of the home environment and the parental guidance the custodial parent provides for the children; the ability of each parent to provide for the children’s emotional and intellectual development; the financial status and ability of each parent to provide for the child; the relative fitness of the parents; and the length of time the present custody arrangement has been in effect. (Matter of Bowe v Robinson, 23 AD3d 555, 556 [2d Dept 2005].)

Although neither party suggested separating the children from each other, “[t]he stability and companionship to be gained from keeping children together is . . .an important factor for a [463]*463court to consider” in deciding custody. (Id.) “Close familial relationships are much to be encouraged. Young brothers and sisters need each other’s strengths and association in their everyday and often common experiences, and to separate them, unnecessarily, is likely to be traumatic and harmful.” (Eschbach,

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Bluebook (online)
41 Misc. 3d 459, Counsel Stack Legal Research, https://law.counselstack.com/opinion/margaret-mc-v-william-jc-nysupct-2012.