Matter of Eldad LL v. Dannai MM.Matter of Eldad LL v. Dannai MM.
Decided and Entered: November 22, 2017
Calendar Date: October 11, 2017
Before: McCarthy, J.P., Lynch, Rose, Clark and Pritzker, JJ.
Alena E. Van Tull, Binghamton, for appellant.
Segal & Greenberg LLP, New York City (Philip C. Segal of counsel), for respondent.
Palmer J. Pelella, Owego, attorney for the child.
LYNCH, J.
MEMORANDUM AND ORDER
Appeal from an order of the Family Court of Broome County (Connerton, J.), entered February 11, 2016, which, among other things, partially granted petitioner‘s application, in a proceeding pursuant to
Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the parents of a child (born in 2014). The parties, who are both Israeli citizens, were introduced in Israel because both wanted to have a child. The child thereafter was conceived pursuant to an agreement made while the mother was living in Israel and the father was living in the United States. Their agreement (hereinafter the parenting agreement) was reduced to writing and executed by both parties after the mother became pregnant and had moved to the United States. At the time this proceeding was commenced, the father held a green card and was eligible to apply for United States citizenship. The mother was residing in the United States pursuant to a student visa that was about to expire.
Although the preamble to the parenting agreement states that the parties planned a civil marriage, the parties never married. The parenting agreement also provided that the mother would relocate to the United States prior to the child‘s birth and, if the mother was not working, the father would “take[ ] care” of all of her expenses. As to custody, the parties provided for different scenarios depending on whether they were residing in Israel or the United States. As to the latter, the parties agreed that they would share joint custody if they were residing together but, if they were living separately, the child would live with the mother, and the father would have parenting time during the week, with overnight parenting time beginning after the child turned one. The parties also included comprehensive provisions for custody and parenting time in the event that the mother was living in Israel and the father was living in the United States. In the event there was a dispute, the parties agreed that “Family Court in [Israel would] have sole jurisdiction to judge any matter involving or resulting from the agreement.”
In April 2015, the father petitioned for custody of the child. The mother answered and moved to dismiss the father‘s petition
As a threshold matter, the mother argues that the forum selection clause in the parenting agreement divests Family Court of jurisdiction to decide this custody matter. We disagree. The Uniform Child Custody Jurisdiction and Enforcement Act (see
Next, and contrary to the father‘s argument, we find that the mother‘s claim that New York was an inconvenient forum was preserved for our review. To this point, despite its finding that New York was the child‘s home state, Family Court had the discretion to decline jurisdiction on the ground that New York was an inconvenient forum after consideration of eight statutory factors (see Matter of Frank MM. v Lorain NN., 103 AD3d 951, 952 [2013]; see
Turning to the merits, an initial custody determination must be based on the best interests of the child, a determination made after “reviewing such factors as maintaining stability for the child, the child‘s wishes, the home environment with each parent, each parent‘s past performance, relative fitness, ability to guide and provide for the child‘s overall well-being, and the willingness of each parent to foster a relationship with the other parent” (Matter of Lilly NN. v Jerry OO., 134 AD3d 1312, 1313 [2015] [internal quotation marks, brackets and citations omitted]). Relevant here, although a custodial agreement between the parties that has not been reduced to an order is a factor to consider (see Matter of Joseph G. v Winifred G., 104 AD3d 1067, 1068 [2013], lv denied 21 NY3d 858 [2013]), it is not dispositive because “[a] promise affecting the right of custody of a minor child is unenforceable on grounds of public policy unless the disposition as to custody is consistent with the best interest of the child” (Restatement 2d of Contracts § 191). Further, where, as here, an initial custody determination involves one parent who wishes to relocate with the child, the parent‘s “decision to reside in a distant locale is a very important factor among the constellation of factors to be considered in arriving at a best interests determination, particularly where there is evidence that it would detrimentally affect the other parent‘s relationship with the child” (Matter of Bush v Lopez, 125 AD3d 1150, 1150 [2015]). Because Family Court has a “superior ability to observe and assess the witnesses’ testimony and demeanor firsthand, its factual findings and credibility determinations — if supported by sound and substantial evidence — will not be disturbed” (Matter of DiMele v Hosie, 118 AD3d 1176, 1177 [2014]; see Matter of William BB. v Melissa CC., 136 AD3d 1164, 1166 [2016]).
At the fact-finding hearing, the mother testified that she was working as a nanny in Israel when she and the father were introduced for the purpose of conceiving and raising a child together. In December 2013, when she was approximately four months pregnant, she moved to the United States with the belief that she would live in Reno, Nevada where the father worked as a cardiologist, that they would marry and that she
In addition to the parties, Family Court also heard testimony from, among others, the parties’ nanny, day-care workers and the mother‘s friends. The father‘s witnesses recounted incidents when the mother became angry over seemingly trivial matters, indicated a desire to return to Israel — both with and without the child — and exhibited other disconcerting behavior. For example, the mother disclosed to the nanny that she wanted to return to Israel and that she could not handle the child, the mother was asked to stop visiting the day-care center because her prolonged visits were impairing the child‘s ability to transition and she resisted signing in and out at day care because she believed the sign-in rule was designed to allow the father to spy on her. In April 2015, at the nanny‘s urging, the mother checked herself in to a crisis center where she presented with “depressed and suicidal thoughts.” Although inpatient treatment was recommended, the mother asked to leave and was discharged in stable condition the same day. She did not follow up with treatment recommendations.
In contrast, the mother‘s friends testified that while the mother was occasionally tearful, she was a loving and attentive parent. The mother did not dispute that it was difficult for her to leave the child at day care and that there were occasions when she lost her temper with both the nanny and the father, and she conceded that on one occasion she pushed the father.
Sandra Antoniak, a psychiatrist retained by the father to perform a forensic psychiatric evaluation of the mother, testified that the mother suffered from moderate, recurrent depression and from a personality disorder, not otherwise specified, with borderline features2. According to Antoniak, the mother‘s depression was worsened by “difficulty adjusting to a new culture [which] negatively impact[ed] her mood and increas[ed] her feelings of social isolation.” The mother testified that she wished to adhere to the parties’ parenting agreement and return with the child to Israel. The father testified that because he believed that the mother was unstable and likely to abscond with the child, her parenting time had to be limited and supervised.
We are unable to conclude that Family Court‘s determination to award primary physical custody to the father with unsupervised visitation to the mother lacked a sound and substantial basis in the record. It is apparent that both parents love the child and, for the most part, each believed that the other was capable of being a good parent to the child. As Family Court noted, despite his claims that the mother was unstable during the pregnancy and throughout the child‘s infancy, the father was able to leave the child with the mother for nearly a month in December 2014 when a planned 10-day trip to Israel was extended due to an illness and for another week-long trip to Israel in February 2015. Further, even after he filed his petition, he left the child with the mother overnight when he was obligated to travel for work.
We are sympathetic to the mother‘s stated desire to leave the United States, where she is dependent on the father‘s continued largesse, to return to Israel, where she could work and seek support from family and friends. Like Family Court, however, we find no basis in the record to conclude that it is in the child‘s best interests to leave the United States to reside with the mother in Israel. The mother offered only vague testimony with regard to where she would live and work if permitted to return to Israel and did not have an actual plan in place. In
We conclude, however, that Family Court should not have awarded the father sole legal custody. Despite the father‘s controlling behavior and the mother‘s anger and frustration towards him, there was limited evidence with regard to an inability to communicate for the benefit of the child. Rather, for the most part, the parties were able to communicate, albeit via text messages. Moreover, by granting sole legal custody to the father, the mother is deprived of an ability to file a petition under the terms of the Hague Convention on International Child Abduction (see Matter of Ish-Shalom v Wittmann, 19 AD3d 493, 494 [2005]). While we do not discern a present scenario where such relief would be necessary, in light of the atypical circumstances of this case — including the father‘s dual citizenship — we believe this potential issue can and should be avoided. In sum, on this record, we do not find a sound and substantial basis for Family Court‘s determination to award sole legal custody to the father and we instead grant joint legal custody to the mother and the father (see Matter of Finkle v Scholl, 140 AD3d 1290, 1292 [2016]; Ehrenreich v Lynk, 74 AD3d 1387, 1389-1390 [2010]). To be clear, however, because we share Family Court‘s concerns, the requirement that the child shall not be removed from the United States for any reason without written consent of both parties is continued and, in the event that the parties are unable to agree, the father shall retain decision-making authority with regard to the child (see Matter of Ish-Shalom v Wittmann, 19 AD3d at 494).
Finally, turning to Family Court‘s award of parenting time to the mother, we are mindful that the mother testified that her student visa was going to expire if her tuition was not paid and
McCarthy, J.P., Rose, Clark and Pritzker, JJ., concur.
ORDERED that the order is modified, on the law and the facts, without costs, by reversing so much thereof as awarded sole legal custody of the child to petitioner; petitioner and respondent are awarded joint legal custody of the child and matter remitted to the Family Court of Broome County for further proceedings not inconsistent with this Court‘s decision; and, as so modified, affirmed.