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In re Proceeding for Custody under Article 6 of Family Court Act RPF

Family Court, Orange County

February 14, 2017

In the Matter of a Proceeding for Custody under Article 6 of the Family Court Act, RPF, Petitioner,
v.
FG, Respondent. In the Matter of a Paternity Proceeding under Article 5 of the Family Court Act, RPF, Petitioner, FG, Respondent. In the Matter of the Application of RPF, Petitioner, for a Writ of Habeas Corpus to bring up the bodies of GPG and LPG, Minor Children, for the Purpose of Awarding Custody of Said Minor Children In the Matter of a Proceeding for Custody under Article 6 of the Family Court Act, FG, Petitioner, RPF and JP, Respondents. In the Matter of a Proceeding for Custody under Article 6 of the Family Court Act, RPF, Petitioner, FG, Respondent. In the Matter of a Proceeding Under Article 6 of the Family Court Act, JP, Petitioner, FG AND RPF, Respondents. In the Matter of a Paternity Proceeding under Article 5 of the Family Court Act, RPF, Petitioner,
v.
FG, Respondent. In the Matter of the Application of RPF, Petitioner, for a Writ of Habeas Corpus to bring up the bodies of GPG and LPG, Minor Children, for the Purpose of Awarding Custody of Said Minor Children In the Matter of a Proceeding for Custody under Article 6 of the Family Court Act, FG, Petitioner,
v.
RPF and JP, Respondents. In the Matter of a Proceeding for Custody under Article 6 of the Family Court Act, RPF, Petitioner,
v.
FG, Respondent. In the Matter of a Proceeding Under Article 6 of the Family Court Act, JP, Petitioner,
v.
FG AND RPF, Respondents. V-6147/6148-14

          Peter Bloom, Esq., Sheila Bloom, Esq., Michael Meth, Esq., and Arianna Antonelli, Esq.

          Lori Currier Woods, J.

         A trial of these matters was held on September 22, 2015, September 24, 2015, September 29, 2016, October 13, 2016, October 18, 2016, October 19, 2016, October 20, 2016, October 21, 2016, October 25, 2016, October 27, 2016, October 28, 2016, November 1, 2016, November 3, 2016, November 17, 2016, November 18, 2016, December 6, 2016 and December 7, 2016 [1]. The following parties were present on each date: FG, together with his attorney(s) Michael Meth, Esq., and/or Bianca Formisano, Esq., JP, together with his attorney Peter Bloom, Esq., RPF, together with her attorney Sheila O'Donnell, Esq., and the attorney for the subject children Ariana Antonelli, Esq. The Court heard testimony from the following individuals: JP, RPF, FG, Dr. Mednick, Ph.D., DABPS, and Andrea M.

         This Court has presided over hundreds of custody cases, none of which have been as contentious, embittered or prolonged as the case at hand. The facts of this case, which has been pending before this Court for over two years, are like none that have ever been presented before this Court, and are relatively new to the changing landscape of child custody in the State of New York. The trial of the pending petitions spanned over the course of 17 days and was delayed for one year due to the numerous appeals that were filed by FG and the subsequent stays that were issued as a result thereof. To further add to the complexities of this case, during the time in which the appeals were pending and the stays were in effect, the New York State Court of Appeals issued its decision in Matter of Brooke S.B. v. Elizabeth A.C.C., 26 N.Y.3d 901 (September 1, 2015), wherein it overruled its decision in Alison D. v. Virginia M., 77 N.Y.2d 651 (1991), which held that a parent was defined either through biology or through a legal adoption and that equitable estoppel would not be recognized as a means to establish parentage. In Matter of Brooke S.B., the Court of Appeals acknowledged that the rule as set forth in Alison D. v. Virginia M., was adverse to the best interest of a child and held that in the case of an unmarried couple who planned to have a child, the non biological/non adoptive parent can achieve standing by establishing, by clear and convincing evidence, that there was a (pre-conception) agreement to conceive and raise a child together. In light of the Court of Appeals' ruling in Matter of Brooke S.B., and after taking into consideration the testimony that was heard in the standing proceeding in the instant case, the Appellate Division affirmed this Court's decision which granted standing to JP one year earlier, lifted any remaining stays that were still in effect and referred the matters back to this Court for continuation of the best interest hearing. The parties have appeared before this Court on occasions too numerous to count over the past two years and during the course of the best interest hearing. In that time, this Court has had the unique opportunity to hear from the parties and to assess their credibility, temperament and sincerity.

         Although the Court has been presented with vastly different versions as to what transpired between the parties, certain facts remain undisputed. At the time that JP and FG, two men, met and began dating, neither one of them had children. JP and FG became involved in a relationship with one another and expressed to each other their desire to have children. Both men preferred to have children who were genetically related to them. JP facilitated the meeting between FG and RPF and it was agreed that FG would donate his sperm and RPF would donate her eggs and carry the children. This Court credits the testimony of JP and RPF that described how, in agreeing to donate her eggs and carry the children, RPF was fulfilling a promise that she had made to her brother years ago, so that he could have children who would be genetically related to him. This Court discredits FG's claims that RPF was merely his surrogate and carried the children for him alone. This Court finds that but/for a promise that she made to her brother, RPF would have never agreed to endure IVF treatment and a twin pregnancy solely for FG's benefit.

         It is undisputed that soon after reaching their agreement for conception, the parties began the process of IVF and RPF became pregnant with the subject children. It is undisputed that the parties entered into a surrogacy contract. This Court finds that the parties entered into the surrogacy contract with the understanding that JP would adopt the children and that RPF would surrender her parental rights to the children but would nevertheless remain an active part of their lives. Although such contracts are not valid in the State of New York, the testimony before the Court established that an attorney prepared the contract and that the parties believed the contract to be valid and legally binding at the time that they entered into it. This Court finds that the contract serves as evidence of the original intent of the parties, which was for JP to adopt the children so that he and FG could raise them together, and for RPF to never be cut out of their lives.

         This Court finds that as the pregnancy progressed, both FG and JP attended medical appointments with RPF, paid her bills as she was on disability and unable to work, paid for renovations to her home and assisted her and her children in various ways. RPF gave birth to the children in 2010 and JP and FG were present for the births. The children were given names that incorporated the names of both men, to wit: GPG and LPG which this Court finds to be further evidence that the intent was always for JP and FG to be the parents of the children and to raise the children together.

         The Court finds that JP, FG and the children lived together as a family for the first four years of the children's lives. The Court further finds that during these first four years both men were actively involved in caring and providing for the children on a daily basis as their parents. Indeed, FG, JP and the children lived as a typical family would, sharing parenting responsibilities, milestones and celebrating special occasions together, including holidays, birthdays and family celebrations, as evidenced by the numerous holiday cards, Father's Day cards and gifts which the parties and children exchanged and which are now in evidence. The Court further finds that the children have very strong attachments to FG and to JP and regard both men as their parent, referring to FG as "daddy" and to JP as "dada". This Court finds that JP was actively involved in the children's lives until 2014, when FG cut off all contact to the children and subsequently made the unilateral decision to remove the children from the State of New York.

         This Court finds that much of the testimony revolved around FG's claims that JP solicited sex online with strangers which in turn endangered the safety of the children. The Court notes that JP vigorously refutes these claims and argues that FG installed the sexual material on his computer. Both men admitted to cheating on one another during the course of their relationship. Indeed, FG admitted that he had a one night stand with individuals that he met online. Although the parties may have engaged in indiscretions which caused the other pain throughout their relationship, this Court is not concerned with who stepped outside of the relationship and rather, is solely concerned with what is in the best interest of the children. This Court finds that there is no evidence in the record to establish that there is any truth to FG's claims that JP endangered the children or that JP and/or RPF are dangerous or harmful to the children. Upon reviewing the facts and circumstances surrounding this case, and upon reviewing the testimony and evidence that is before this Court, this Court finds that much if not all of FG's testimony was self-serving, insincere and incredible. And while this Court has no doubt that FG has an immeasurable amount of love for the children, this Court finds that his undeniable need to be in control drove him to engage in a series of selfish and destructive actions that were by no means in the best interests of the children, and which only served to promote his own interests.

         Relocation to Florida:

         FG is requesting permission from this Court to relocate with the children to the State of Florida. His application for relocation was filed with the Court after he had already removed the children from New York State without any prior notice to the parties or without receiving the permission of any Court in the State of New York. When reviewing a custodial parent's request for permission to relocate, the court's primary focus must be on the best interests of the child. See Matter of Steadman v. Roumer, 81 A.D.3d 653 (2d Dept. 2011). Although each custodial parent's request for relocation must be decided on its own merits, the factors to be considered include, but are not limited to, each parent's reasons for seeking or opposing the move, the quality of the relationships between the children and each parent, the impact of the move on the quantity and quality of the children's future contact with the noncustodial parent, the degree to which the lives of the custodial parent and the children may be enhanced economically, emotionally, and educationally by the move, and the feasibility of preserving the relationship between the noncustodial parent and the children through suitable visitation arrangements". See Matter of DeCillis v. DeCillis, 137 A.D.3d 1122 (2d Dept. 2016). See also Matter of Said v. Said, 61 A.D.3d 879 (2d Dept. 2009) and Matter of Tropea v. Tropea, 87 N.Y.2d 727 (1996). This Court notes that it has been held that the strict application of the aforementioned factors is not required in the context of an initial custody determination, such as in the case at hand. See Matter of Santano v. Cezair, 106 A.D.3d 1097 (2d Dept. 2013). Notwithstanding, this Court will consider the factors in regard to FG's request for relocation.

         Reasons for/against the relocation:

         FG makes a number of arguments in support of his request to relocate to the State of Florida. To begin, he argues that the State of New York does not have enough income opportunities and that there is a tremendous amount of income potential for him in Florida. FG stated that during the time that he lived in Florida, he worked as a realtor selling mostly luxury homes. He stated that he earned more money in Florida because realtors in Florida are paid faster and receive larger commissions as compared to realtors in New York. He stated that Florida has more luxury homes than New York and that more people are moving to Florida. FG also stated that he and his fiance started two businesses in Florida which are doing very well. FG stated that much of his family, whom he considers to be his support system, now lives in Florida. He stated that the children enjoy spending time with his family and will not be able to do so as often if they are not permitted to relocate to Florida. FG argued that the schools in Sarasota, Florida are specialized and offer more extracurricular activities. He stated that he hopes that the children will be able to attend the Pine View School, which is a school for gifted children in Sarasota, Florida. FG argued that the cost of living and extracurricular activities are more expensive in New York than in Florida. He argued that his monthly expenses will be higher if he has to live in New York. Lastly, FG argued that Florida is just a happier place to live, as it has palm trees and beaches.

         JP and Ms. RPF both oppose the relocation request. They argue that New York State is the children's home state and is where the children belong. They argue that the children spent the first four years of their lives in New York until FG took them away and cut off all contact. They argue that they have already missed out on a substantial amount of time with the children that they will never get back and argue that if the children reside in Florida they will not be able to be an active part of the children's lives.

         This Court finds that FG has failed to demonstrate how a relocation to Florida will be in the children's best interests and further finds that he has failed to establish that the children's lives will be enhanced economically, emotionally and educationally by the proposed move. FG argues that New York does not have sufficient income opportunities for him. This Court finds this argument to be without merit and in fact, unavailing. By his own testimony FG established that he was able to achieve much financial success in New York, particularly in Orange County. During his time in Orange County he owned several different businesses and purchased several different homes. Indeed, so successful was he with his business endeavors in New York that he was able to live off of his savings for years after the children were born. This Court finds that any financial hardship that FG may have faced in Orange County was as a direct result of his own actions and poor decision making, for example: his failure to make mortgage payments on homes that he owned even though he was receiving rental income which, by his own testimony, produced a surplus for him. FG claims that Florida has more luxury homes and that more people are moving to Florida, but has failed to provide the Court with any proof of these claims. This Court finds that FG has many income producing opportunities in New York, as he can easily renew his real estate license in New York and can even obtain a license in nearby New Jersey if he so chooses. What's more, FG has proven that he has a knack for starting new businesses, particularly in Orange County. FGs argues that the cost of living in Florida is less expensive than it is in New York, and while the Court does not dispute this fact, the Court does not find this fact to be a sufficient reason to relocate the children to Florida, especially since JP will now be sharing in the cost of the children's expenses.

         In further support of his relocation request, FG argues that many of his family members, whom he refers to as his support system, have moved to Florida. This Court finds this argument to be superficial at best. FG testified that with the exception of his mother, who lives with him in Florida (and who previously resided with him in New York), his family and friends live a minimum of one hour away from him and the children. At best the children see his family members a few times a month. And although FG refers to his family as his support system for the children, he stated that he, his fiance, and at times, his Mother, are the people who care for the children. He further stated that if he has to go out he hires a babysitter to stay with the children - not his sister, or his aunt or uncles, despite the fact that he claims that he moved to Florida to be closer to his support system. Further, this Court finds that FG would continue to have family support in New York, as he acknowledged that he has family members that continue to reside in New York, including his grandparents, whom he stated he is very close with. What's more, he will continue to have support from his fiancé, as his fiancé, who is originally from New York, and has family in New York, has already moved back to New York with FG and the children. This Court is alarmed that FG is more concerned about the children spending time with his extended family rather than with JP. It is clear that FG feels no remorse about the time that the children have missed with their dada and has no remorse about the time that they will continue to miss with their dada if they were to reside in Florida. This Court finds that having meaningful contact and spending more time with JP is in the best interest of the children. The Court further finds that the children can continue to spend time with FG's family in Florida on long weekends and during school vacations when they are scheduled to be with FG. This Court will not address FG's statement that Florida is just a happier place to be because it has beaches and palm trees other than to say that such a comment only serves to show the extent to which FG has trivialized and marginalized JP's role in the children's lives.

         FG argued that the children's lives will be enhanced educationally by living in Florida and stated that the schools in Sarasota, Florida are specialized and offer more extracurricular activities. He stated that he hopes that the children will be able to attend the Pine View School, which is a school for gifted children in Sarasota, Florida. Once again this Court finds FG's argument to be baseless and without merit. The children currently attend the Monroe-Woodbury school district in Orange County, which is known for its high quality schools. Indeed, the testimony established that JP and FG moved to Monroe, NY in part because of its high quality schools. Further, Sarasota, Florida is not the only place where the children can participate in extracurricular activities. FG stated that the children participated in drama, dance, cheerleading and karate while living in Florida. This Court notes that every single one of those extracurricular activities is available in Orange County. Indeed, the children have already been enrolled in a gymnastics program in Orange County. FG also stated that he is hopeful that the children will be able to attend a school for the gifted. This Court notes that it has not been provided with any information indicating that either child is gifted and has been accepted into the Pine View School or any school for the gifted. Indeed, the Court has not been presented with information claiming that either child should even be enrolled in a gifted program. This Court cannot grant a request to relocate more than 1, 000 miles away from JP and Ms. RPF based upon FG's hope that one day the children will be declared to be gifted and accepted into the Pine View school.

         Quality of the Relationship between the Children and each Parent:

         This Court finds that a relocation to Florida would have an extremely negative impact on JP's relationship with the children. It is clear to this Court that the children are closely bonded to both JP and FG and view each one as their parent. This Court finds that it would be in the best interest of the children to spend meaningful quality time with both FG and JP on a regular basis. The Court finds that it would be in the best interests of the children for both of their parents to play an active role in their day to day lives. This Court finds that such cannot happen if the children are living in Florida, as JP will miss out on an inordinate amount of time with the children and will not be able to do the things that parents typically do with their children on a daily basis, such as giving hugs and kisses, helping them to get ready for the day, sharing meals together, helping them with their homework and bedtime routines, attending school events and extracurricular activities, and all of the many other things that parents do day in and day out with and for their children. This Court further finds that a relocation would have a negative impact on Ms. RPF's relationship with the children, as she too, will be greatly limited in her ability to be with the children.

         Impact of the Move on the Quantity and Quality of the Children's future contact with the Noncustodial parent:

         This Court further finds that a relocation to Florida would greatly restrict the quantity and quality of the children's future contact with JP and with Ms. RPF. During the time that the children resided in Florida, FG prevented the children from having any and all contact with JP and Ms. RPF. He did not allow the children to see them, either in person or via facetime. He did not allow the children to speak with them, or to even send them a picture or a card. FG completely cut JP and Ms. RPF out of the children's lives. Indeed, JP and Ms. RPF did not even know the whereabouts of the children for quite some time and were prevented from having any and all contact with the children.

         The testimony established that FG directed JP to only communicate with him via his attorney and that he threatened to call the police if JP attempted to see the children. What's more, during the course of this proceeding, FG has filed an appeal to every interim Order of this Court which granted JP and Ms. RPF contact and/or time with the children. He has filed emergency petitions in the State of Florida and has gone so far as to file papers with the highest Court in the State of New York. In light of the foregoing, and in light of the efforts that FG has made to keep the children away from JP and Ms. RPF, even in the midst of this hearing, this Court has great reason to believe that the quantity and quality of the children's future contact with JP and Ms. RPF would be in great jeopardy should the children be permitted to relocate to Florida. Further, this Court, having had the unique opportunity to assess the parties, finds FG's claims that he will allow the children to have regular contact with the parties if the children are permitted to relocate to Florida, to be disingenuous, insincere and completely lacking in credibility.

         FG stated that he did not discuss the move to Florida with JP or with Ms. RPF because he had not heard from JP for six months prior to the move. He stated that it had been even longer since he had heard from Ms. RPF. In making these purely self serving claims, FG fails to acknowledge that JP reached out to him, only for FG to threaten to contact the police if JP contacted him again or came to see the children. FG fails to acknowledge that he directed JP to address all communication to his attorney. FG fails to acknowledge that Ms. RPF had filed a petition for custody in Richmond County and fails to acknowledge that the venue would be changed to Orange County, at the request of his attorney. FG in essence would have this Court believe that JP and Ms. RPF abandoned the children, which is simply not true. The Court does not credit FG's statements. What's more, FG stated that the children did not suffer any emotional harm from the move to Florida. The Court finds that this statement by FG epitomizes his inability to recognize JP as a parent to the children, his refusal to allow the children to have a relationship with JP in the future, and his inability to put the best interests of the children before his own personal desires.

         Economic, Emotional and Educational Enhancement/Feasibility of preserving the relationship with the noncustodial parent:

         For the reasons set forth above, this Court finds that FG has failed to establish that the children's lives will be enhanced economically, emotionally and educationally by the proposed move. Morever, and as discussed above, this Court finds that there is little to no chance of preserving the relationship with the noncustodial parent should the relocation be permitted, as FG has already proven that he is not willing to allow the children to have a meaningful relationship with JP.

         Overall, this Court finds that relocation to the State of Florida would not be in the children's best interests. It is clear to this Court that New York State is the children's home state. It is where the children were born and where they were raised, by their two parents, for the first four years of their lives. Most importantly, New York is where JP, their dada, is. This Court finds that FG's unilateral decision to move to Florida and to thereafter cut off all contact with the parties, particularly to JP, was detrimental to the best interest of the children. This Court further finds that FG has failed to establish that the children's lives will be enhanced in any way by a relocation to Florida. Moreover, this Court finds that the quality of the other parent's relationship with the children will absolutely and unquestioningly be negatively impacted by the proposed move, as would the quantity and quality of the children's future contact with the other parent. Accordingly, FG's request for permission to relocate with the children is denied.

         Custody:

         Each of the parties has filed for custody of the subject children. RPF states that although she is the biological mother of the children, she will not seek custody of the children if JP is awarded custody, as she knows that JP will allow her to have access to the children. She states that she will continue to fight for custody of the children if custody is awarded to FG, as she believes that he will continue to alienate her from the children's lives.

         FG argues that he is and has always been the primary caregiver for the children. He states that he has always been the parent who has taken care of all of their needs and who has arranged for medical appointments, early intervention services, schooling and extracurricular activities, with little help from JP, who was too busy pursuing sex with online strangers. He states that he should be permitted to remain as the children's primary caregiver.

         JP denies that he pursued sex with strangers online and argues that FG hacked into his computer and installed the sexual material. JP argues that he was an active caregiver to the children prior to FG cutting off all contact and removing the children from the State of New York. He argues that his relationship with FG was one that consisted of domestic violence, wherein FG was the dominant and controlling partner while he was the passive and submissive partner. JP argues that FG would constantly threaten to take the children away if JP did not do what he (FG) told him to do. He states that he lived in fear that FG would act on his threats to take away the children, and states that he did everything that he could to remain in the children's lives, even if that meant confessing to accusations that he knew were not true. JP argues that his bond with the children is strong despite the years that passed with little to no contact because of the large role that he held in the children's lives for the first four years of their lives. He states that he would never keep the children away from FG even though FG took the children away from him. He further states that he would not deny RPF access to the children and would ensure that everyone who loves the children would have access to the children.

         In making an initial custody determination the Court must consider the best interests of the child. Factors to be considered in determining the child's best interest include the quality of the home environment and the parental guidance the parent provides for the child, the ability of each parent to provide for the child's emotional and intellectual development, the financial status and ability of each parent to provide for the child, the relative fitness of the respective parents, and the effect an award of custody to one parent may have on the child's relationship with the other parent. See Huaringa v. Camargo, 138 A.D.3d 993 (2d Dept. 2016) and Salvatore v. Salvatore, 68 A.D.3d 966, 893 N.Y.S.2d 63, 2009 NY Slip Op. 09452 (2d Dept. 2009); see also Eschbach v. Eschbach, 56 N.Y.2d 167 (1982). The Court's paramount concern in this, as in any custody dispute, is to determine, under the totality of the circumstances, what is in the best interest of the children. In that regard, this Court will analyze the aforementioned factors in relation to each parties' request for custody.

         Quality of the home environment and the parental guidance the parent provides for the child:

         This Court finds that all three of the parties love the children dearly and are able to provide the children with a good home environment and parental guidance. The testimony before the Court established that each of the parties has his/her own home. RPF currently lives on Staten Island with her daughters. Despite the allegations of domestic violence that FG alleges took place in her home, the Court does not find her home to be unsuitable or unsafe for the children. FG is currently residing in a small cottage with his fiancé and the children. He stated that the cottage is not the living arrangements that the children are accustomed to, as they lived in a three bedroom home in Florida that had backyard and a pool. This Court fully acknowledges that the cottage is not, nor was it ever intended to be, a long term dwelling place for FG, and although the Court is certain that FG will be able to find a suitable home for the children in Orange County, the Court is concerned with regard to how long FG would remain in that home, as he has a tendency to frequently change residences. JP testified that he currently resides in Orange County, New York, in the same home in which he has resided since he and FG broke up in 2014. The children have a bedroom in the home and sleep on bunk beds which he purchased for them.

         The Court finds that although RPF's home is suitable for the children, it would not be in the children's best interest to reside in her home. Accordingly, the Court must consider who, as between FG and JP, can best provide the children with the most suitable, quality home environment. In reaching this determination the Court does not just look at the physical dwelling place in which the children will reside, as each man has a safe and suitable home for the children, but ...


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