Can I Modify a Custody Agreement?

Decided: April 1, 2010

Justice Jeffrey S. Sunshine
Supreme Court
Justice Sunshine


The parties were divorced by a judgment of this Court dated July 21, 2008, approximately fifteen (15) months prior to the institution of this post judgment litigation. The judgment was predicated upon a stipulation of settlement dated February 13, 2008, which was incorporated into the judgment to survive and not be merged therein. The stipulation of settlement provided in pertinent part that:
Article 17
The parties shall equally share joint legal custody of the minor child….
Article 18
The parties shall each have equal parenting time with their son. The details of when the child is with each parent shall be worked out by the parents among themselves, and if they are unable to amicably work out a schedule each is aware that they have access to seek intervention by this court or any court of competent jurisdiction….
Article 19
The parties shall mutually cooperate with one another to consult and arrive at decisions which are in the best interest of the child with respect to health, education and general well being. In the event that the parties are unable to agree upon any matter of importance to the rearing of the child, either party may apply to a court of competent jurisdiction and seek a judicial resolution of the issue in dispute.
The father’s application is predicated upon his alleged concern for his child’s well being, a claim that he has been spending 69 percent of the time with the child since the joint custodial agreement was instituted, and his claim that he is more available to the child because he is retired on disability and the mother is employed full-time. He raises concerns as to the mother’s availability for the child, her failing to make him dinner or have food available, and the child’s desire to spend more time with the father than the mother. In his affidavit in support of his claims he stated in part:
Despite this arrangement, the defendant has shown over the past year and a half that she has little to no interest in being an “equal parent” to [the child]. The defendant has established a pattern of either failing to pick [the child] up from my house, or sending [the child] to stay with me when it is inconvenient for her to have him around her house. This behavior has become more and more prevalent and persistent as we go forward. Over the past year and a half, I have contemporaneously maintained a spreadsheet journal to keep track of [the child’s] time with defendant and myself. (Exhibit C-Spreadsheet.)…
Tabulating the time [the child] spends with the defendant and myself through September 26th of this year…. [The child] has spent approximately 69 percent of his time with me over the past year and a half and only 31 percent of his time with his mother. In this time span, [the child] has spent 224 more days with me compared to the defendant. This is equivalent to approximately (7) full-months of time, more than half of a year….
This vast discrepancy in parenting time has occurred with consent and approval of the defendant. The defendant has not made any efforts to spend more time with [the child] in the past year and a half. In fact, the defendant has regularly sent [the child] to my house during weeks [the child] is scheduled to be with her simply because she does not want him around. [The child] is with me more than double the amount of time he is with the defendant!…
The only times the defendant has insisted on sticking to the schedule is when she is angry at me by “withholding” [the child] from me. As an example, on February 16, 2008, [the child] asked the defendant if he could go over to my house, in light of the fact that the defendant did not have any plans with [the child] that day and they weren’t doing anything. The defendant told [the child] that he could not and he was not allowed to come over to my house, as it was her scheduled time with [the child]….
In contrast, on February 26, 2008, [the child] was supposed to be taken care of by the defendant the entire week. However, I had to pick up [the child] from school and bring him to his hip hop classes as the defendant was unable to do so. I was glad to do it but it does show the defendant’s priorities do not put [the child] high on her list, or alternatively, she has no ability to plan and keep schedules….
At other times, the defendant declined her right to spend time with [the child] for weeks on end, as has left him staying with me. From April 11, 2008 to May 13, 2008, [the child] stayed with me with the defendant’s knowledge and consent. This again occurred from July 21, 2008, to August 11, 2008. From October 13, 2008 until November 30, 2008, a period of 49 days, the defendant spent the equivalent of a day and a half (1½) with [the child], while I took care of him the other forty-seven and a half (47½) days with [the child] staying over at my place the entire time. During this time, the defendant opted not to pick up [the child] on October 19th because a “friend” of hers was staying over at her house. The other weeks wherein the defendant was scheduled to have [the child] over at her house, the defendant simply declined and had [the child] stay over at my place. Rather than force the issue and send [the child] to the defendant, who would treated him as an “intrusion” upon her life if I had sent him over, I figured it would be best for all involved to just have [the child] stay at my place, rather than risk him getting into a fight with the defendant….
On May 23, 2009, the defendant and [the child] were scheduled to attend a barbeque at [the child]’s uncle’s house. [the child] was looking forward to this event. Unfortunately, the defendant told [the child] on the 23rd that there had been a change in plans and that they were no longer going to the barbeque. I later found out that the defendant in fact did go to the barbeque by herself, without [the child]! She just ditched him….
In her email communications with me, the defendant frequently adds commentary to her emails disparaging me. (Exhibit D-E-mails.) In an April 15, 2008, email, she tells me I “need to grow up.” (Exhibit D.) In September 17, 2009, email, she accuses me of being “condescending.” (Ehibit D.) Further, the defendant constantly refuses my request that she reimburse me for simple, routine expenses for [the child’s] extracurricular activities, haircuts, etc. (Exhibit D.-February 2008 emails.) These incidents, in addition to her yelling and screaming at me over the phone lead me to believe that she no longer has the ability to put aside differences to work together for [the child]’s benefit….
I am asking the court for sole custody of [the child] in light of the reality that I am the de facto custodial parent….
I am always happy to spend time with my son and to have him at my house. I am fortunate enough to be retired, and to have plenty of time available to take care of him and to be with him. I take being a father very seriously and I am committed to being the best father I can possibly be. I am willing to be and have been the more “hands-on” parent….
As a young forty-seven (47) year old retiree, I am frequently home, and I am always available to [the child]. When [the child] is staying with me, I do my best to make sure that I am always around the house in case he needs anything….
I live in 2 bedroom 3.5 bath condominium. The condominium is very spacious. In this condo, [the child] has his own room and I make sure he has plenty of his own space. [The child] and I have lived here for the past year and he has become very comfortable with the living space and the neighborhood. When he stays over, I make sure that there is plenty of food in the house and that he is taken care of while he is here. [The child] frequently calls his friends over and they all hang out at the condo, which I fully encourage….
In contrast, I am led to believe that the defendant does not put as much effort into providing [the child] with a proper home environment. The defendant is frequently out of the house, even in the evenings when [the child] is staying with her. When the defendant goes out, she does not cook for him, or leave him with any food to eat. This has led to several occasions when [the child] has called me, asking me if I want to go out to dinner because he has nothing to eat at the defendant’s home. There have also been occasions when I ask [the child] what he had for dinner at the defendant’s and he will tell me he didn’t have dinner because “he wasn’t hungry”, which is an incredulous statement considering how active [the child] is as a teenager. [The child] will tell me he did not eat dinner because he was not hungry to cover for the defendant, in order to prevent the defendant and me from getting into an argument….
The defendant lives in a four-family home, with the defendant’s daughter and the daughter’s husband and children, who live in a separate unit of the home. While the defendant may think that it is acceptable for her to leave [the child] unattended since he has other relatives in the 4-family home, they are not in the same unit home and are not responsible for taking care of him….
[The child] knows that I always have time for him, and he takes full advantage of this by keeping me involved in his day to day life activities, confiding his fears, hopes and dreams to me, and asking me for advice regarding any problems he may be facing or questions he may have. We are both very fortunate to have a strong father-son bond. As recently as May of this year, [the child] asked the defendant if he could go over to my house during a week he was scheduled to stay with the defendant in order to talk to me and ask me for advice. The trust and faith [the child] has put in me is something that I will not take for granted, and I plan to continue to be there for him as long as he needs my guidance….
[The child] has expressed a desire to primarily reside with me. As a young man of fifteen (15) years of age, he has well developed and well thought out opinions and wishes. This makes sense given that I am the parent who is more available to him, who is more involved in his schooling and his extracurricular activities. While I am sure that [the child] wishes to have just as strong a relationship with the Defendant, the reality of this situation is that [the child] is closer to me than he is to the defendant, and he recognizes that I am better prepared and equipped and willing to take care of him on a full-time basis…
Given that [the child] has spent the vast majority of his time at my house, I have been forced to undertake additional expenses as a result. These expenses include additional food I have to provide [the child] when he staying over, as well as the other attendant costs that come with having another person living in your house, such as increased electric, water, and heating costs, and other such expenses. While I am more than happy to undertake these expenses for [the child]’s benefit, I believe it is only fair that the defendant, who as a result of [the child] spending less time at her house incurs less expense than originally contemplated in our settlement agreement, should contribute to my expenses of taking care of our child….
Given the unforseen change in circumstances wherein the child spends so much more time with me than with the defendant, the court should modify our current child support arrangement. Thus, I request that the court direct the defendant to pay me child support pursuant to the Child Support Standards Act. I have attached my Net Worth Statement for reference. (Exhibit F-Net Worth Statement)….
The defendant-mother objects to the plaintiff-father’s allegations and disputes his time keeping methodology and analysis, and asserts that she has been a good joint custodial parent and should not be punished for acting in the child’s best interest by being flexible and accommodating to the child’s best interests. She states in part that:
The plaintiff and I have adhered to the joint legal custody provisions of the Agreement. We have both exercised joint legal custody as contemplated by our Agreement. The plaintiff and I have mutually cooperated with each other and consulted with each other to arrive at decisions which are in the best interest of [the child] with respect to his health, education and general well being. On occasion, the plaintiff has unilaterally made a “minor” decision about [the child] without first consulting me, such as enrolling [the child] in baseball in early 2008. However, we have never encountered any problem concerning the major decisions….
In fact, the plaintiff’s Affidavit is devoid of any specific instance where he and I did not reach a joint decision with respect to [the child]’s health, education and general well being….
The plaintiff and I agreed to joint custody because we both agreed that [the child] should spend substantial time with each of his parents and that he should never feel pressured by having to be with one parent over the other. We have loosely followed a schedule whereby the plaintiff and I alternate weeks. However, neither one of us has been firm in this schedule. We have each been flexible in altering the time, based on any number of reasons. At least my objective in this joint custody arrangement was to never make [the child] feel as if he is caught in a tug of war between his parents. Nor have I wanted [the child] to feel that he has to leave one household on a specific day and specific time to leave for the other household. For these reasons, the plaintiff and I specifically elected to not specify a detailed parental access schedule with days and times that [the child] would be with each parent, as most people do when reaching their divorce agreements. Instead, [the child] is comfortable in each of his parent’s homes….
I never knew that after he agreed to joint custody, the plaintiff was secretly running a competition to use against me as to which parent does the most for [the child]. I too have always taken an interest in [the child]’s life. Contrary to the plaintiff’s assertions, I too have addressed all of [the child]’s needs. I also have taken him to the doctor and taken care of him when he was ill. Every year, since 1996 I am the parent who is contacted by the district office of the Board of Education concerning [the child]’s Individualized Education Program (IEP). (A copy of the 1996 IEP placement is annexed). Except for the January 2009 IEP, when a mistake was made by the Board of Education and I was not contacted in advance….
I categorically deny, as accused by the plaintiff, that I have failed to pick up [the child] or have sent him to stay with the plaintiff because it is inconvenient for him to be at my house. Likewise, I deny, that I have declined to have [the child] stay at my house as alleged by the plaintiff. I have been and continue to be busy as a full-time working parent….
I did not have the time nor inclination to maintain a spreadsheet journal and pie graph (see plaintiff’s exhibits) tracking [the child]’s time with each of his parents. I never would have dreamed of doing such a thing. I do however, refute the validity of the plaintiff’s journal and pie graph. The plaintiff’s computation of his time versus my time ensures to his benefit (of course!). For example, the plaintiff credits himself 0.5 time on the occasions that he picks up [the child] from School and drops him off at my house, where [the child] stays through the night. He also indicates bulk periods of time, such as October 21, 2008, through November 29, 2008, where the entire time is wrongfully attributed to him solely. [the child] has not spent the equivalent of seven months more with the plaintiff than me. This is completely false….
The plaintiff and I have always been flexible with the time that [the child] spends with each of us. This is not because I found it inconvenient to have [the child] with me, but because I made decisions with the best interest of [the child] as my concern. By was of example, on certain days this past summer that were technically “my days” [the child] asked me if he could instead go to the cabana at Breezy Point/Far Rockaway beach that his father rented. I know how much [the child] enjoyed being at the beach where he inevitably met up with his friends. Instead of telling [the child] “no it’s my time”, of course I said it was fine.
Another example is that last year, when the plaintiff’s brother’s teenage son [name omitted] was visiting the plaintiff for one month from Florida, knowing that [the child] enjoyed being with his cousin, I consented to [the child] sleeping at the plaintiff’s house during what would have been my week just so the cousins who don’t see each other often could be together. During this time, after work on weekdays, I picked up [the child] and [name omitted] and took them out to eat so that I could spend time with my son. Then on the weekends, I picked up both boys and brought them to my house where we hung out together. Either I or my mother cooked for the boys, or sometimes, we all went out to a neighborhood restaurant….
At best, in support of these claims, the plaintiff points to my email to him of April 15, 2008 where I tell him to grow up. A review of the email chain however demonstrates that I did so in response to the plaintiff’s purposeful act for months in listing my first name on check he wrote me rather than [name omitted] because of his frustration that I elected to not change my last name after the divorce. (Copies of some of the checks written in my first name are annexed)….
The plaintiff then gets to the heart of his true motive for this entire court application: the fact that I refuse his demands for reimbursement for [the child]’s extracurricular activities, haircuts, etc. The only disagreement that the plaintiff and I have had since we entered into the Agreement concern the plaintiff’s actions in cutting the equitable distribution payments that I am entitled to. Article 20 of our Agreement specifically states: “the parties agreed that each parent shall pay for the routine cost of the child when the child is with that parent…. The parents will have equal time with the child, and will thus equally bear the child support costs by their direct expenses relating to the routine costs of having the child with them half the time”. The plaintiff, despite this provision, has insisted that he be able to deduct half of his expenses for [the child] from my equitable distribution costs….
I do not dispute the plaintiff’s claim that he provides [the child] with a good home environment. I have no doubt that the plaintiff’s residence is spacious, comfortable and well-stocked with food. However, contrary to the plaintiff’s claims, I also provide [the child] with a good home environment….
In reply the plaintiff-father states in part:
The defendant refers to a time when she allowed [the child] to go to a cabana at Breezy Point/Far Rockaway with me on one of her days, as an illustration of how she has always been flexible. What the defendant neglects to mention is that [the child] was then later forced by the defendant to leave Breezy Point/Far Rockaway early, because she demanded he immediately pick up his school bag which he had left at her house. The defendant for whatever reason would not agree to let [the child] stay and have fun, and have me pick up the said school bag. This simply illustrates how the defendant can quickly change her mind regarding where [the child] should be, and how under the current custodial arrangement, [the child] must always worry that if the defendant is not in a good mood, he may have to drop whatever he is doing to come back to her….
While the defendant has made a blanket denial that she has ever turned [the child] away or ditched him, she does not address the specific incidents I set forth in my application. She does not specifically deny that she demanded I pick [the child] up from her house the evening before Mother’s Day, after originally agreeing to let him stay over. She does not specifically deny ditching [the child] at a family barbeque. She does not provide any rebuttal to disprove either of these incidents occurred….
While I will agree that the defendant is a good cook, [the child] tells me that she unfortunately does not do much cooking for him. The fact that she has shown [the child] where the “mad” money is for him to get a pizza shows that she has outsourced the responsibility of making sure [the child] is properly fed to Mark’s pizzeria. Similarly, the defendant repeatedly refers to how other members of her family also reside in the same building. This is indicative of how the defendant does not get that it is her responsibility, not her relatives [sic], to take care of [the child]….
The spreadsheet kept is a fair representation of the amount of time that [the child] spends with the defendant and myself. On days when [the child] would stay with me, but would go to dinner with the defendant, I similarly credited the defendant with 0.5 of the day. The simple fact is that [the child] has been spending more and more time with me, a fact that the defendant does not refute, as she concedes that the alternate week visitation schedule has not necessarily been followed. While, the defendant criticizes me for keeping these records, I did not do so to run a “contest” with the defendant. My experience in going through a divorce with the defendant taught me the importance of documenting anything involving the defendant….
The defendant fails to see that this is not about her, or even me. This is not a contest, and I am not disparaging her for having to work full-time. This is about what is best for [the child], and placing [the child] in what would be the best situation. [The child] has expressed that he wishes to live with me and I am fortunate enough to be in a position wherein I am able to facilitate this wish. Given the changes in circumstances over the past year and a half, awarding me sole custody would be in [the child]’s best interests and would hopefully alleviate the tension that has arisen from this arrangement wherein [the child] may or may not be able to be around me at any given time, depending on the mood of the defendant. By clearly defining that [the child] lives with me, he will then hopefully be able to patch up his relationship with the defendant, as he will no longer have to worry that she will tell him to either come back to her place, or be unable to take care of him when he is with her. Obviously, I would encourage and give [the child] the ability to spend ample time with the defendant. Thus, I request that the Court grant my application for a change in custody, awarding me sole custody of [the child]….
On March 20, 2009, [the child] wanted to come over to my house to talk to me about personal issues. During this time, he was technically supposed to be staying at the defendant’s so I told him to ask the defendant for permission. The defendant told [the child] it was okay. A few minutes after he called her, at around 3 p.m., the defendant called me screaming and angrily threatened me to get him to her house, or she would call the cops on me. I immediately put him in a cab out of fear of what the defendant may do….
In further reply the defendant-mother states:
In his Reply Affidavit, the plaintiff continues his argument in support of requesting sole custody under the heading “the facts demonstrate the significant change in circumstances which warrant a change in custody”, (see pages 2-5). Yet, he continues to make conclusory allegations, without making an evidentiary showing that he is entitled to a hearing….
I find it almost amusing that the plaintiff concedes that I am a good cook yet alleges that I don’t do much cooking for [the child]….
The plaintiff makes the conclusory allegation: the hostility between the defendant and I has rendered it impossible for us to work together”. Yet, the plaintiff has failed to set forth any instance where we have not reached a joint decision regarding a major issue affecting [the child]. Instead, the plaintiff details an alleged voicemail that I left on his phone, a good year and one half ago on April 18, 2008, an alleged instance over eight months ago in March where I screamed at the plaintiff forcing him to put [the child] in a cab to come to my home, and an alleged threat to have the plaintiff “hacked up” a few weeks ago….
There is no doubt that the plaintiff-father herein, from the date of the agreement, embarked on systematic record keeping to document each and every instance when the child was with him or that he should be credited with same.
Significantly, the defendant-mother appears to have acted, for the most part in good faith, by making decisions regarding parenting time that are in the child’s best interest. It must not be overlooked that the agreement provided inter alia “the details of when the child is with each parent shall be worked out by the parents among themselves….” Nor can it be ignored that this child is now 16 years old and in less than two years will not be the subject of an order of custody and visitation (see FCA 413; DRL 2; see also Matter of Lazaro v. Lazaro, 227 A.D.2d 402 [2 Dept., 1996]).
Each of the parents is seeking $15,000.00 in counsel fees for this litigation, for a total of $30,000.00. It cannot be said that the dispute over parenting time, when coupled with a concern over whether a teenager is eating home cooked meals or pizza, should in and of itself be the subject of a hearing on a change in custody. Nor should the fact that one parent clearly has more economic resources than another be a basis to change a joint custodial relationship. The dispute regarding parenting time though, if not resolved by the parties, may be the subject of an evidentiary hearing.
The Court is not persuaded by the plaintiff-father’s arguments that he is on disability and has a 2 bedroom, 3.5 bath condominium as a basis to change custody. The father’s view that he is home more, and has more resources than the mother to meet the child’s needs is more reflective of a lack of understanding of what it means to be a single parent while working full-time, rather than a negative reflection on the mother’s abilities, while living in a four family house with other relatives. It appears that both of the parents have the ability to provide support for the child.
The child’s exposure to the extended family is something that the court looks upon in a positive manner. Generations of New Yorkers, first, second and even third generation Americans, were successfully raised in this city in homes occupied by extended families. As a matter of public policy, the court must be mindful that any decision to alter the joint custody provision would, in effect, punish a parent for the very flexibility clearly contemplated in the agreement, and which is inherent in any joint custodial relationship. The agreement clearly contemplated flexibility: there was no specific start or end days or times that the child would be with each parent delineated in the agreement. For this court to now interfere with the very broad joint custody provision negotiated, and punish the mother for her flexibility, would send a message to parents that flexibility is not in their child’s best interest. Similarly, it would send a message to parents who successfully maintain employment that their efforts to maintain employment and enjoy both the financial resources and dignity that come with employment and the concomitant necessary absence from the home may be used against them.
The father’s complaints that the mother allows the child to go with him as a basis to change custody and the simultaneous complains about the mother’s refusal at times to adhere to his demands to give him more time or alter the schedule are glaring contradiction.
While the court does not sanction the mother’s reaction concerning the father’s attempt to seek custody, nor would the court approve of such language or displays. It is clear that the father’s application herein infuriated the mother. There does not appear to be a systematic pattern of such behavior. If anything, the defendant’s reactions to the plaintiff’s request, for the most part, were to be somewhat expected, especially since it appears that her good will and efforts to act in the best interests of the child were all along being carefully and systematically recorded for future litigation.

The Law

The New York Court of Appeals in the seminal 1978 decision in Braiman v. Braiman, (44 N.Y.2d 584, 407 N.Y.S.2d 449 [1978]) stated inter alia:
It is understandable, therefore, that joint custody is encouraged primarily as a voluntary alternative for relatively stable, amicable parents behaving in mature civilized fashion [citation omitted]. As a court-ordered arrangement imposed upon already embattled and embittered parents, accusing one another of serious vices and wrongs, it can only enhance familial chaos.
Unlike the procedural predicate of a trial, as in Braiman, the case at bar presents an agreement executed by the parties less than two (2) years ago. The court is cognizant of the well recognized principle that courts should favor in court stipulations of settlement (see Hallock v. State of New York, 64 N.Y.2d 224, 485 N.Y.S.2d 510 [1984]). It is in this procedural context that this court must determine if the submissions warrant a hearing on the issues of the father’s applications to change custody. It should be noted that there is nothing herein to indicate that either of the parties has done anything to materially alter their agreement which provides, inter alia, that they “mutually cooperate with one another to consult and arrive at decisions which are in the best interest of the child with respect to health, education and general well being.” (see Catalano v. Catalano, 66 A.D.3d 1012, 887 N.Y.S.2d 671 [2 Dept., 2009]; see also Gainey v. Gainey, 303 A.D.2d 628, 756 N.Y.S.2d 647 [2 Dept., 2003]; Trapp v. Trapp, 136 A.D.2d 178, 526 N.Y.S.2d 95 [1 Dept., 1988]; Lenczycki v. Lenczycki, 152 A.D.2d 621, 543 N.Y.S.2d 724 [2 Dept., 1989]).
Ironically, there are no significant allegations that major decisions cannot be made jointly, nor will this court interpret the father’s representation that the child wants to have him be the custodial parent alone as a basis to entertain a request for a hearing. Interestingly and significantly, the mother does not view that there is a need to disturb the joint custody arrangement. The mother does not herself seek sole custody. There is no requirement that joint custody mandates equal time.
It must be noted that courts do not operate in a vacuum, unaware of the practical impact that a protracted custody dispute would have on this family. In less than two (2) years the issue of custody herein will be moot. The counsel fees alone, contemplated by the applications made by both parties, would total at least $30,000.00. The court must consider this application to change custody, to a certain extent, within that context. The allegations of the father, when taken as a whole, whether they be the “time differential” an “outburst of inappropriate anger after being served with papers,” a “child needing to eat pizza,” a “mother living in a home with an extended family in separate apartments,” a “child needing to speak to a father about certain issues rather than a mother,” or having 3 ½ bathroom condominium, all do not warrant the intrusion into this family’s life by the courts of the State of New York. There is no indication that the parties’ relationship is so acrimonious that the parties cannot effectively make joint decisions (see Foley v. Foley, 52 A.D.3d 773, 861 N.Y.S.2d 386 [2 Dept., 2008]).
“A noncustodial parent seeking a change of custody is not automatically entitled to a hearing but must make some evidentiary showing sufficient to warrant a hearing (see Matter of Simmons v. Budney, 5 AD3d 389, 390 [2004]; Smoczkiewicz v. Smoczkiewicz, 2 AD3d 705, 706 [2003]; Corigliano v. Corigliano, 297 AD2d 328, 329 [2002]; DiVittorio v. DiVittorio, 283 AD2d 390, 390-391 [2001]; Itchkow v. Itchkow, 275 AD2d 442 [2000]; Matter of Coutsoukis v. Samora, 265 AD2d 482, 483 [1999]).” (McNally v. McNally, 28 A.D.3d 526, 816 N.Y.S.2d 98, [2 Dept., 2006]; see also Salvatore v. Salvatore,68 A.D.3d 966, 893 N.Y.S.2d 63 [2 Dept., 2009]; Arcabascio v. Arcabascio, 48 A.D.3d 606, 852 N.Y.S.2d 352[2 Dept., 2008]; Matter of Sergei P. v. Sophia M., 44 A.D.3d 490, 843 N.Y.S.2d 603 [1 Dept., 2007]; see also e.g., DiVittorio v. DiVittorio, 36 A.D.3d 848, 829 N.Y.S.2d 193 [2 Dept., 2007]).
It must be noted that neither party alleged any significant drastic impact on this child’s life that would warrant a modification of an agreement entered into by the mother at least in good faith. As such, the application to modify the joint custody agreement and to award the father custody is denied. The father has failed to show a material change in circumstance to require a hearing on that issue (see Flangos v. Flanges, 70 A.D.3d 691, 894 N.Y.S.2d 104 [2 Dept.,2010]). The father is not automatically entitled to a hearing (see Salvatore v. Salvatore, 893 N.Y.S.2d 63 supra; see also Mathie v. Mathie, 65 A.D.3d 527, 884 N.Y.S.2d 433; [2 Dept., 2009]; Jean v. Jean, 59 A.D.3d 599, 875 N.Y.S.2d 88 [2 Dept., 2009]; Arcabascio v. Arcabascio, 38 A.D.3d 606 supra; Frawley v. Salvatore, 58 A.D.3d 678, 874 N.Y.S.2d 488 [2 Dept., 2009]).
While expressing in conclusory allegations that the relationship between the child and the mother is tenuous, the father appears to base his application on a statistical analysis of the time spent with him, and his belief that he is a better parent. There is no doubt that teenagers and parents have their differences. Those differences are often more exacerbated after completion of a divorce (see e.g. Mabole v. Dell, 48 A.D.3d 988, 851 N.Y.S.2d 733 [3 Dept., 2008]). Neither the mother’s alleged request for the father’s help, nor the recognition that in a particular circumstance the other parent may be more effective when dealing with a child’s behavior, should not viewed as a basis to award one party custody over the other. Rather, a proper joint custodial decision, which recognizes the strengths and weakness of each parent, is appropriate. A change or modification of parenting time does not, in this instance, require a modification of joint custody.

Child Support

That branch of the father’s motion to set child support is granted to the extent that the court directs an evidentiary hearing to determine the parties’ responsibility for child support utilizing the Child Support Standard’s Act (see DRL 240 [1-b] (CCSA). This direction is consistent with the Court of Appeals decision in Babst v. Rossoff (91 N.Y.2d 723, 675 N.Y.S.2d 19 [1998]). In Babst the Court of Appeals stated that even in a shared custody arrangement:
As a threshold matter, we agree with the lower courts and the parties that the CSSA applies to cases of shared custody (see, Matter of Holmes v. Holmes, 184 AD2d 185, 187). The more difficult issue we must resolve is how the CSSA should be applied in cases of shared custody, which in New York encompass a number of situations including joint decision making, joint legal custody or shared physical custody of the child.
In recognizing that there is a differentiation between shared custody for the purposes of decision making and custody for determining child support, the court noted:
Although the CSSA is silent on the issue of shared custody and speaks in terms of a “custodial” and “noncustodial” parent in the application of its methodology, we see no reason to abandon the statute, and its Federally mandated policy considerations, in shared custody cases. While “joint custody” is generally used to describe joint legal custody or joint decision making ( see, e.g., Bliss v. Ach, 56 N.Y.2d 995, 998, 453 N.Y.S.2d 633, 439 N.E.2d 349; Braiman v. Braiman, 44 N.Y.2d 584, 589-590, 407 N.Y.S.2d 449, 378 N.E.2d 1019), we are aware that many divorcing parents wish to maximize their parenting opportunities through expanded visitation or shared custody arrangements. However, the reach of the CSSA should not be shortened because of the terminology employed by divorcing parents in resolving their marital disputes and settling custody arrangements. In most instances, the court can determine the custodial parent for purposes of child support by identifying which parent has physical custody of the child for a majority of time ( see, Matter of Holmes v. Holmes, supra, at 189, 592 N.Y.S.2d 72 [Casey, J., concurring in part and dissenting in part]; see also, Nicholas v. Cirelli, 209 A.D.2d 840, 619 N.Y.S.2d 171; Harmon v. Harmon, 173 A.D.2d 98, 578 N.Y.S.2d 897). As noted by Supreme Court, “[t]he reality of the situation governs” (167 Misc.2d, at 753, 635 N.Y.S.2d 453). Thus, even though each parent has a custodial period in a shared custody arrangement, for purposes of child support, the court can still identify the primary custodial parent.


While the threshold issue of modification of the joint custody provision can be determined on the submissions herein, the issues of parenting time and child support require an evidentiary hearing. A modification or establishment of a parenting time does not require herein a modification of joint custody (see Mathie v. Mathie, 65 A.D.3d 527 supra; Jean v. Jean, 59 A.D.3d 599, 875 N.Y.S.2d 88 [2 Dept., 2009]; see also Matters of Jones v. Jones, 105 A.D.2d 535, 481 N.Y.S.2d 479 [3 Dept., 1984] aff. 65 N.Y. 2d 649 [1985]).
The parties and counsel are directed to appear before the court on May 3, 2010. At that appearance the court will hear suggestions as to whom shall be appointed as the attorney for the child. Any such appointment must be of an individual eligibility for appointment as a “private pay” attorney for the child and oral argument on the issue of fees for the child’s attorney (see 22 NYCRR 36 and 22 NYCRR 7.2).
In as much as the post-judgment issue has not been fully litigated nor has it been determined if there is a basis to seek enforcement pursuant to DRL 238. The application for counsel fees is not yet ripe for adjudication. Unlike a pendente lite motion, there is no requirement at this stage to determine post judgment counsel fees (see c.f. Frankel v. Frankel, 2 N.Y.3d 601, 814 N.E.2d 37 [2004]).
Thus, a hearing must also be held to determine the “primary custodial support parent” to analyze the parties income and calculate child support. Either party shall have the right to litigate the issue of a deviation pursuant to “paragraph (f)” of DRL 240[1-b] [f] if they believe such an award after calculation would result in an “unjust or inappropriate award”. It appears that there may be a change in circumstances sufficient to warrant a hearing on the issue of child support based upon the allegations that child spends more time with one parent (see Gainey v. Gainey, 303 A.D.2d 628 supra).
Additionally, the issue of arrears if any under the terms of the agreement shall also be the subject of the evidentiary hearing. The parties shall exchange updated affidavits of net worth no later than April 26, 2010 and child support worksheets by May 3, 2010. This matter is scheduled for a pre-hearing conference on May 3, 2010.
The following constitutes the decision and order of the court. ¦

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