PRELIMINARY STATEMENT
The instant case requires the Court to balance the allegations of domestic violence set forth by the Petitioner-Appellant (hereinafter “the Mother”), and the allegations set forth by the Respondent-Respondent (hereinafter “the Father”) that the mother’s allegations of domestic violence are false, and that her move from the Clinton County, near the border with Canada, to New York City is nothing more than a subterfuge to separate him from his child.
The jurist who actually met with the parties, and who heard firsthand the Mother’s allegations, Referee Gail A. Adams, in her decision dated December 5, 2017 granting the Father’s motion for a change of venue to Clinton County, noted that “the only thing Petitioner (Mother) has shown this court of her intentions to make New York County her permanent residence is her self-serving affidavit.”
On March 6, 2018, a stay of the change of venue to Clinton County was granted by the Appellate Division. On June 27, 2018, the Hon. Rosalyn H. Richter, on a motion filed by the Mother and a cross motion filed by the Father, issued an order directing to exercise jurisdiction over the issues relating to the order of protection and a temporary access schedule for the Father until this appeal is decided. The matter is next scheduled to be heard by the Hon. Christopher W. Coffey in Part 49 of the New York County Family Court on August 17, 2018, at 2:00 p.m.
QUESTIONS PRESENTED
- Whether the trial court properly granted the Father’s motion for change of venue based on the residence of the parties. The trial court so held.
- Whether the trial court properly granted the motion for change of venue where it found the mother failed to satisfy the residency requirement for the matter to be heard in New York County. The trial court so held.
- Whether the trial court properly considered the special venue provisions of Family Court §818 and Domestic Relations Law §76-f (2) (a) regarding the residence of the mother as a victim of domestic violence. While the trial court did not explicitly address this issue in its decision dated 12/5/17, it is respectfully submitted that the trial court implicitly addressed said provisions and properly granted the Father’s application for change of venue based upon the Mother’s self-serving and unreliable allegations of domestic violence.
- Whether New York County is the proper place for venue based on the alleged residence of the mother in New York County as a victim of domestic violence under Family Court §818 and Domestic Relations Law §76-f (2) (a). While the trial court did not explicitly address this issue in its decision dated 12/5/17, it is respectfully submitted that the trial court implicitly addressed said provisions and properly granted the Father’s application for change of venue based upon the Mother’s self-serving and unreliable allegations of domestic violence.
STATEMENT OF FACTS
According to the Mother’s sworn affidavit dated November 21, 2017, at the time the subject child was born, the Mother was a resident of Clinton County, New York (See Mother’s Affidavit, 11/21/17, paragraph 2).
After the birth of the subject child, in June of 2017, the Mother, the Father, and the subject child resided with the Father’s parents at his parent’s home in Clinton County. After the birth of the subject child, the Mother attempted to purchase a home in Clinton County (See Mother’s Affidavit, 11/21/17, paragraph 3).
The Mother arranged for her mother to travel to Clinton County on September 23, 2017, to take the subject child for a week, to enable her to close on the contract for said home (See Mother’s Affidavit, 11/21/17, paragraph 4). On September 23, 2017, as the Mother was preparing the subject child to travel to New York City for a visit with the Maternal Grandmother, an argument developed between the Mother and the Father which ended with the Father putting the subject child into a car, which was then driven by the Mother to meet the Maternal Grandmother (See Mother’s Affidavit, 11/21/17, paragraph 5). On September 23, 2017, as she was driving to New York City, the Mother decided that she would stay in New York City with the subject child, and permanently reside there (See Mother’s Affidavit, 11/21/17, paragraph 6).
On September 25, 2017, the Mother filed a family offense petition against the Respondent in the Family Court of New York County, alleging only the altercation that occurred on September 23, 2017 (See Family Offense Petition, dated 9/25/17). In her testimony before the Hon. Gail Adams on September 25, 2017, in addition to her description of the September 23rd altercation, the Mother testified as follows regarding the parties’ alleged history of domestic violence:
Referee: Has he ever hit you?
Mother: He has.
Referee: But in this particular incident he didn’t. He was just trying to get the baby?
Mother: He was trying to get the baby, and when he realized that I wasn’t going to let go, he put his hand in a fist like he was going to punch me. And then his mom went and got the car seat away from him.
Referee: When is the last time he hit you?
Mother: Four months ago.
Referee: And did you go to the hospital?
Mother: No.
Referee: Where did he hit you?
Mother: It was in my back.
Referee: And is this a normal thing, arguing and hitting?
Mother: The arguing is a normal thing; the hitting, no.
Referee: That was the first time he hit you?
Mother: No.
(Tr. 9/25/17, at 6-7).
On October 13, 2017, the Mother filed an amended family offense petition against the Father in the Family Court of New York County, alleging for the first time a lengthy history of domestic violence dating back to 2011 (See Amended Family Offense Petition, dated 10/13/17).
On October 23, 2017, the Father filed a petition in the Family Court of Clinton County for custody of the subject child.
On October 30, 2017, the Father filed a motion in the New York County Family Court for a change of venue of the Mother’s petitions from New York County to Clinton County.
On December 5, 2017, the Hon. Gail A. Adams, Referee, rendered a decision on the Father’s motion granting an Order changing venue from New York County Family Court to Clinton County Family Court (the Order Subject to Appeal).
- The Mother
Is Not Credible
While Mother claims a lengthy history of domestic violence at the hands of the Father (See Mother’s Affidavit, 11/21/17, paragraph 3), she implausibly claims that “They were never a witness to the times he (Father) struck me both before and during my pregnancy. The Plattsburg police were never present for a domestic violence episode between Chadwick and myself (sic, See Mother’s Affidavit, 11/21/17, paragraph11). In said sworn affidavit, the Mother also makes an equally implausible attempt to deflect culpability for an incident in which she lied to police in 2013 (See Mother’s Affidavit, 11/21/17, paragraph 11; and New York State Incident Report, attached as Exhibit 6 to the Father’s Appellate Division Cross Motion, dated June 22, 2018), to wit:
- The Mother, in her sworn affidavit, paragraph 11, states the following:
The 2013 incident report annexed as an exhibit to the moving papers is being used as a sword against me suggesting I lied to the police and ambulance dispatchers. Movant (Father) is using it to question my credibility. However a close reading of the report clearly states that it was Chadwick (Father) who called for the police and ambulance, not me. In fact the report states “Redacted stated he was concerned, so he called 911 as he was on his way from Rouses Point.” I never reported anything to the police. I did not falsely request an ambulance and state that I was bleeding. Chadwick did. The only conversation I had prior to the police and ambulance showing up was with Chadwick. I telephoned him to tell him I had a fight with a drunken roommate name (who Chadwick knew). I told him I was hurt. The incident happened when I was a 20 year old junior at Plattsburg. I never gave a false statement to the police of 911 (sic).
- However, the “Narrative” box of the New York State Incident Report that the Mother is referring to (Father’s Appellate Division Cross Motion, Exhibit 6), states the following:
At the above date and time, Officer Wood and I responded to a call of a female bleeding in a residence, no further information was given. City EMS was also responding. Upon our arrival, Officers made contact with Natalie Redacted (Mother), who was uninjured. At this point, Redacted told Officers that she had gotten into an argument with her roommate, Tenaya Blake about Redacted’s boyfriend, Chadwick Redacted. Blake apparently went to a friend’s house after the argument, and Redacted attempted to contact Redacted. Redacted believed that the only way that she could contact Redacted was to call him and tell him that she was bleeding. Redacted stated he was concerned, so he called 911 as he was on his way from Rouses Point. Officers were at the residence upon his arrival. Redacted was told that she was fine and she was not bleeding. Redacted was then notified of the severity of her false statements. Redacted then left the scene at the same time as Officers, no further Police assistance was needed.
It is respectfully submitted that a “clear reading” of the Incident Report clearly indicates that the false statements made to police officers were attributed by the responding officers to the Mother, not to the Father, as claimed by the Mother in her sworn affidavit. Further, it demonstrates the lack of scruple incurred by the Mother as she manipulates and exploits the Father for her own selfish ends.
B The Mother
Is Abusing the Legal Process
For the Sole Purpose of Removing
The Father from the Life
Of the Subject Child
As of November 21, 2017, less than two months after she took her infant child and relocated from Clinton County New York to New York City, a six (6) hour distance by car, without the Father’s knowledge much less permission, the Mother had fully taken up residence with her parents and sister in Manhattan near Central Park, and had secured a full time job in Brooklyn New York, utilizing the Maternal Grandmother as a full time babysitter for the subject child (See Mother’s Affidavit, 11/21/17, paragraphs 7 & 8).
According to the Affirmation of Andrew Redacted, Esq., Paragraph 7, dated June 4, 2018, filed with the Mother’s Appellate Division Motion, the Clinton County Family Court issued an oral temporary visitation order on February 27, 2018:
On February 27, 2018, the parties appeared in the Clinton County Family Court where the court modified the order granting visitation every other weekend with the mother to drop off and pick up the child in Albany, New York one alternate weekend from 5:00 p.m. Friday to 5:00 p.m. Sunday and on the mother to drop off and pick up the child in Clinton County, New York on the other alternate weekend from 6:00 p.m. Friday to 6:00 p.m. Sunday.
In a footnote to the above referenced paragraph, Andrew Redacted, Esq. states:
On information and belief, no written order exists regarding the modification of the terms of the order of visitation. The mother has continued to comply with the verbal order of the court.
(See Affirmation of Andrew Redacted, Esq., dated June 4, 2018, Footnote 2, filed with the Mother’s Appellate Division Motion).
It is clear by Mr. Redacted’s affirmation that the Mother was aware of the existence of a valid Court Order imposing upon her the obligation to make the subject child available to his father on alternate weekends, with the time and place of the transfer of the child clearly specified. The initial order of alternate weekend visitation was rendered by the Clinton County Family Court on Wednesday, January 3, 2018, with both parties present in Court (See Affirmation of Andrew Redacted, Esq., dated June 4, 2018, Paragraph 6). On information and belief, because the Mother had already made the trip from New York City to Clinton County mid-week, the Court skipped the immediate weekend, and ordered the Father’s first visit to commence on Friday, January 13th. A simple review of the calendar reveals that, according to the schedule set in motion by the Clinton County Family Court, Father’s Day fell on the Father’s scheduled weekend, June 15th – 17th. The subject child’s birthday, June 11th, fell on the Monday prior to the Father’s scheduled weekend of June 15th – 17th.
In a series of text messages, printed out and attached Exhibit 7 to the Father’s Appellate Division Cross Motion, dated 6/22/18, the Mother, beginning May 24, 2018, sought to unilaterally alter the oral Order rendered by the Clinton County Family Court on February 27, 2018, due to the fact that her new job in Brooklyn made it impossible for her to comply with her obligation to transport the subject child to either Albany County or Clinton County on Fridays (See Father’s Appellate Division Cross Motion, dated 6/22/18, Exhibit 7, pages 1-3,6-8, 16, 22-24, 26, 28-30, 32-33, 35, 38 & 41).
Apparently the Mother believed that, because the Temporary Visitation Order rendered by the Clinton County Family Court in open court and in the presence of the parties and their counsel was neither reduced to writing nor filed, her compliance with it was purely voluntary and not mandatory (See Father’s Appellate Division Cross Motion, dated 6/22/18, Exhibit 7, pages 4 & 39).
Throughout the text messages reproduced in Father’s Appellate Division Cross Motion, dated 6/22/18, Exhibit 7, the Mother evinces a clear intent to separate and thereby alienate the subject child from his father:
- On June 10, 2018, in response to the Father’s proposal of Joint Custody and split holidays, with the subject child spending alternating two week periods with each parent, the Mother responded thus:
No, I will not agree to that. His home is here with me. I don’t think you should have ANY unsupervised visits. However, you can have him every other weekend like you already have until we hear back from the appeal.
(See Exhibit 7, pages 21 – 22).
- On June 11, 2018, the day of the subject child’s birthday, in response to the Father’s request to Facetime with the subject child, the Mother responded thus:
I’m on my way home now. I’ll call you when I’m there. The baby isn’t feeling too good because he has more teeth coming in. The most I can give you is an hour if he’s agreeable.
(See Exhibit 7, page 25).
- On June 12, 2018, in response to the Father’s insistence that the Mother comply with the February 27, 2018 Temporary Visitation Order rendered by the Clinton County Family Court, the Mother responded thus:
When he’s (the subject child) in school, he’s not going to be missing days to go up there. If you can’t agree on one of the four options I gave you, then I won’t be bringing him.
(See Exhibit 7, page 29).
- On Friday, June 15, 2018, in response to the following message from the Father:
Natalie, it’s Father’s Day and Lucas birthday and my father and I and the entire family have had plans for months now. I told you we were going to have a party for him. I’m sorry but I expect him to be at Chazy police station at 6 tonight as court ordered. I missed my son’s first birthday and that’s something I can never get back so I’m insisting that you don’t ruin his birthday with his family up here and please just do what the judge ordered.
To which the Mother responded thus:
I told you 3 weeks ago that I will not be able to take off from work. I am working still at this moment. I’m sorry but I will not be in Chazy at 6.
(See Exhibit 7, page 33).
Despite her claims that the only reason she cannot comply with the Clinton County Family Court Temporary Order of Visitation is because of her Friday work schedule, on the weekend of June 15th – 17th, knowing it was Father’s Day Weekend and the Father had plans to celebrate the subject child’s birthday with extended family, the Mother exploited the occasion in an attempt to coerce from the Father an agreement to amend the Clinton County Court Order. After failing to comply with her obligation to make the subject child available on Friday, rather than “making good” by transporting the subject child to the Father on the morning of Saturday June 16th, the Mother instead denied the Father access for the entire weekend, communicated thus:
Father: I just left the police station, I made a report with the NYSP about the violation of the court order, and as you are well aware by tomorrow Natalie his first birthday party will be well over since it started at 6:30 pm tonight. Also we have his first year pictures scheduled for tomorrow morning, as we did when he was a newborn. Please tell Lucas daddy loves him and he will see him tomorrow.
Mother: So is that an agreement to that schedule going forward?
Father: No.
Mother: So then no. As your lawyer is fully aware, since there hasn’t been one filed, there’s nothing enforceable. There no guarantee that you will return him to me (sic). I will not be driving him up.
Father: I respectfully insist that you bring Lucas to Chazy NYSP as per court order. He has already missed his birthday party planned with the family because you failed to show tonight please don’t take away his one year pictures with the family too Natalie.
Mother: Chad you failed to communicate that you had anything planned for him. You knew well enough in advance that I would not be able to take off from work and then you persist that I find a way to drive Lucas 6 hours in one. I do not have a guarantee that you will return him and you continue to not work with me when I was trying with you. What time are the pictures.
Father: Starts at10.
Mother: Will you send me some for his album?
Father: What time will you be here?
Mother: I will not.
(See Father’s Appellate Division Cross Motion, dated 6/22/18, Exhibit 7, pages 38 – 41).
On December 1, 2017, four days prior to rendering her decision, dated December 5, 2017, granting the Father’s application for a change of venue from New York County back to Clinton County where the parties resided together with the Subject Child, the trial court revealed it’s growing impatience with the Mother and her tactics when it stated the following on the record in open Court:
Listen, I understand you have an issue with the gentleman, and that’s fine, but regardless of what it is, he’s the father of this child, and whether it’s this court or another court, he’s going to have access to this child. The longer you take to give access is the more distant the child is going to become to him. He’s been living with you and the child, so the child is probably missing him but can’t verbalize that, you know, missing the father. But you have to – – you have to make that work. Outside of your differences he still has to have access to his child.
ARGUMENT
Point One:
In All of the Cases
Cited by the Mother,
Allegations of Domestic
Violence are a Factor
That Must Be Weighed
Against the Traditional
Factors Considered Upon
A Motion for Change
Of Venue
In the case of Jeanne E.M. v. Lindey M.M., 189 Misc. 2d 669 (N.Y. Fam. Ct., 2001), the Court held that “Demonstrated acts of domestic violence by the father against the mother” defeated the father’s “good cause claims that would otherwise support a change of venue back to his county of residence (Id., at 670, emphasis added). As examples of “demonstrated acts of domestic violence,” the court offered the following description:
The mother’s family offense petition alleges, primarily, a serious pattern of emotional domestic violence. The allegations describe a course of conduct by the father rather than the more typically seen allegations of discreet acts of physical violence. The allegations include keeping the mother isolated from relatives and friends, verbal abuse, excessive possessiveness, deprivation of physical and economic resources and destruction of personal property.
Id., at 671.
Further, in addition to the Mother’s allegations, the Court noted the father’s own admission:
The father has admitted in court that, after the mother initially fled the marital residence, he took and destroyed every item of her clothing, including her underwear and her wedding dress.
Id. at 671.
Despite the “demonstrated” acts of domestic violence noted in its decision, the Court in Jeanne E.M. nonetheless weighed that factor against the traditional factors that must be considered in any change of venue application:
The court is mindful of the fact that allowing one parent to litigate a custody dispute in her new county of residence, while also having temporary custody of the children, gives her a substantial home court advantage. It also has the ancillary effect of molting a simpler custody dispute into a relocation case.
* * * * * * * *
In this case, the domestic violence factor clearly outweighs the usual factor of witness convenience and substantial contacts with the original county of residence.
Id. at 672.
Likewise, in Matter of E.H. v. D.B., N.Y.L.J., August 8, 2008, at 28, col. 1 [Fam. Ct. NY County], the Court emphasized that “The unique facts of the instant case required this court to determine” whether the expanded definitions of venue warranted further expansion to embrace the petitioner in that case (emphasis added).
Finally, in H.P. v. B.P., N.Y.L.J., January 22, 2008, at 19, col. 3, the change of venue was from Queens County to Nassau County, hence the traditional considerations of inconvenience of venue were de minimis when weighed against the allegations of domestic violence.
Conclusion: Point One
While not expressly set forth in her decision dated 12/5/17, the soliloquy set forth by Referee Adams on 12/1/17, just a few short days prior, clearly reveals that the adverse impact upon the Subject Child, the Father, and the relationship between the two, was weighing heavily on her mind as she considered the Mother’s thin allegations of domestic violence as they pertained to the motion for change of venue that sat before her.
Point Two:
The Trial Court
Was In a Better
Position than the
Appellate Court
To Ascertain the
Veracity of the Parties,
And to Assess the
Appropriate Weight
To Be Given to Their
Respective Allegations
In Deciding the Motion
For Change of Venue
In the case of People v. Shedrick, 104 A.D.2d 263, at 274 (4th Dept. 1983), affirmed 66 N.Y. 2d 1015 (1985), the Court observed as follows:
Credibility is best determined by the trier of fact who has the advantage of observing the witnesses and, necessarily, is in a superior position to judge veracity than an appellate court, which reviews but the printed record.
Conclusion: Point Two
In the instant case, the trial court was in the best position to assess the credibility of the Mother as she set forth her initial allegations under oath on September 25, 2017, and then incrementally embellished upon them in her subsequent petition and affidavit in support of her opposition to the Father’s motion for change of venue. It is also clear in the Court’s soliloquy dated 12/1/17, days before rendering her decision on the Father’s motion for change of venue, that the Court was assessing the likelihood that the Mother was leveraging her allegations of domestic violence, and the distance between her “safe haven” and the long-term residence of the Father, to terminate any relationship between Father and Child. The trial court was also in the best position to assess the Mother’s motivations.
FINAL CONCLUSION
For all the reasons set forth above, the Mother’s allegations that the trial court failed to consider and give appropriate weight to her allegations of domestic violence is purely speculation. The decision of the trial court granting the Father’s application for a change of venue from New York County to Clinton County, given all of the unique circumstances of this case, is both legally and logically sound, and should be upheld.
PRINTING SPECIFICATION STATEMENT
Processing System: Word; Typeface: Times New Roman; Point Size: 14; Word Count: 4,120.
Dated: August 5, 2018
Bronx, New York ___________________________
Michael F. Dailey
Attorney for Respondent-Respondent
One Riverdale Avenue
Suite One, Mailbox Eleven
Bronx, New York 10463
(718)543-0100
(email) mikedaileylaw@gmail.com
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