M E M O R A N D U M FAMILY COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK
In the Matter of By: HON. JEFFREY ARLEN SPINNER A.J.F.C. Petitioners/Respondents Dated: February 7, 2000 v. Docket #: V-4428-99 V-4514-99 V-4429-99 V-4515-99 V-4430-99 V-4516-99 V-4431-99 V-4517-99 V-4432-99 V-4518-99 Respondents/Petitioners. V-4433-99 V-4519-99 V-4434-99 V-4520-99 V-4435-99 V-4521-99 John L. Ciarelli, Esq. Naomi P. Torrisi, Esq. Ciarelli & Dempsey Ronald A. Hollander, Esq. Attorney for Attorneys for 425 Broad Hollow Road, Suite 112 875 Avenue of the Americas Melville, NY 11747 New York, NY 10001 Anthony DiSanti, Esq. Susan Menu, Esq. Law Guardian for the Children Attorney for Legal Aid Society/Law Guardian 739 East Main Street Bureau Riverhead, NY 11901 400 Carleton Avenue Central Islip, NY 11722

These consolidated proceedings commenced pursuant to Section 651 of the Family Court Act concern the four infant children of . On November 13, 1999 , her husband , was arrested and charged in connection with her death and is currently incarcerated. Since that time, two of their children, and , have been residing with their paternal grandmother, , and her husband, , in the state of . The two older children, , and , have been residing with sister, , and her husband, , at the home of their maternal grandmother, , in . Both the and the now seek custody of all four children until such time that is able to acquire custody or until further order of the court. As a threshold matter, this court had determined that arrest and incarceration where sufficient to establish the requisite "extraordinary circumstances" and that all of the parties had standing to seek custody of the children (see, Bennett v. Jeffreys, 40 N.Y.2d 543, 387 N.Y.S.2d 821; Ratliff v. Glanda, ___ AD2d ___, 693 N.Y.S.2d 319). the Court further determined that as a direct result of his incarceration was incapable of caring for his children and the best interests of the children dictated that his custodial rights be terminated until further order of the Court. As such, the Court, sua sponte, and without prejudice, dropped as a party to this proceeding in accordance with the provisions of CPLR Sections 1002 and 1003. The parties and the Court are in full agreement that the four children should not remain separated and should all be placed in the same household. The only issue remaining before the Court is whether the children should reside with the or the . To this end, the Court concudted a fact-finding hearing over the course of several days and hereby makes the following findings of fact and conclusions of law: and have been married for twenty years. They live in with their seventeen year old son, . They have lived there for six years. Their home is a two story ranch situated on an acre of land located in a residential neighborhood. It has four bedrooms, three bathrooms, a living room, dining room and kitchen, and a total area of approximately 2700 square feet. There are a number of children in the neighborhood who are in the same age group as the children. The are both in their mid-fifties, and like all the parties to this proceeding, are practicing Romas Catholics. is a retired school teacher and receives income from a pension. served in the United States Navy and is a retired firefighter. He suffers from Multiple Sclerosis and receives income from Social Security, a disability policy, a New Jersey firefighters pension, and the Veterans Administration. Their combined household income is approximately $8,000 per month. testifiedthat they have the financial means to care for the children and any money they might be entitled to as a result of being granted custody would be placed in trust for the children. Not surprisingly, her son , wants the to be granted custody of his children. testified that she had a close but rocky relationship with her daughter-in-law, . The problems mostly concerned alcoholism. Notwithstanding these differences, , visited the children several times throughout 1998 and 1999. She and her husband spent their vacations visiting the children and on two occasuions, and the children drove down to to visit with the at their home. In September of 1999, while hospitalized for treatment of liver failulre, requested that come to New York to assist her in caring for her children. came to New York and stayed for about nine days. She testified that asked her to come up because other members of her family were too busy to help. However, she also testified that during her stay, on one occasion, came to the house and transported to the doctor for a scheduled appointment. the Court is of the opinion that the have a close, loving relationshsip with their grandchildren. the Court further believes that should they be granted custody, they would promote and encourage visitation with their maternal grandmother, , as well as with the . The offer a stable home environment and are financially capable of supporting the children independent of any assistance to which they may be entitled. are in their mid-thirties and reside in the home of . Their eight year old daughter, , also lives there with them. is employed in the State of and lives there during the week. He comes home to Long Island on weekends. He testified that should the be granted custody, he would ask for a transfer to Long Island, and said that his employer has assured him such a request would be granted. Both and were members of the United States Marine Corps and lived in until the end of 1998 when came off active duty. It was at this time that they decided to move to New York and live with mother.

Home is a dormered Cape Cod style house with a full finished basement apartment. They live in the upstairs portion of the house and occupies the main floor. Presently, the basement is occupied by a tenant. has testified that the tenant will be moving out soon and the basement will be available as a play room for the children. Both she and plan to purchase a home of their own in the near future. Whether they buy a home on Long Island or in New England will depend upon the custody decision of this Court. currently earns $42,000.00 per year. is unemployed. However, she receives unemployment insurance payments and plans on taking courses in the hope of becoming a real estate agent. is employed as a receptionist in a real estate office. It was unclear whether the pay rent to . testified that purchases the groceries but otherwise gives the no financial assistance. The testified they have an unspecified "reserve" of money which they intend to use as a down payment on a house. They believe that their current income will be sufficient to maintain a household of five children and two adults, factoring in funds they anticipate receiving from Social Security and other benefits to which the children may be entitled. They also introduced evidence that the local Catholic School, St. Thomas the Apostle Elementary School, has offered full scholarships to all four of the children. In addition to the above, the introduced evidence that a trust fund has been established to benefit the children. and her brother, , are the designated trustees and the corpus is presently approximately $80,000.00. Notwithstanding the trust, the claim they are financially capable of purchasing a home. However, they did not rule out using some of the trust funds for that purpose. also testified that the trust funds would be available for the benefit of the children even if custody was granted to the . The Court is of the opinion that the relationship with the children is also a close and loving one. In addition, the Court has heard no evidence which would suggest that they would not promote and encourage visitation with the should they, the , be granted custody. The Court further believes that they are sincere in their desire to offer the children the best home environment which they are capable of providing. However, it cannot be denied that much of their plans for the future are expressly contingent upon events which have yet to occur; such as job transfer and their search for and purchase of a home are but two examples. It is well settled that the primary consideration for the Court in any custody matter is the best interest of the children, which in turn, requires consideration of a number of factors, including, inter alia, the quality and stability of the respective home environments and the relative fitness and ability of each of the prospective custodians to provide for and guide the children's intellectual and emotional development (e.g., Eschbach v. Eschbach, 56 N.Y.2d 167, 451 N.Y.s.2d 658; Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 447 N.Y.S.2d 893; see also, Moorehead v. Moorehead, 197 A.D.2d 517, 602 N.Y.S.2d 403 [2d dept., 1993}. Although a "totality of the circumstances" approach is employed and no single factor should be determinative, the facts of each case will dictate that some factors be accorded more weight than others in making an award of custody. In support of their request for custody, the called a child psychologist and expert on Post Traumatic Stress Disorder, Dr. Benjamin Hirsch. Dr. Hirsch testified he met with and interviewed the and the two younger children. He testified that the purpose of the meeting was to determine if the would be appropriate and effective parental substitutes. His observations of the and the children led him to the conclusion that they had a close, loving relationship and that the , despite disability, were more than qualified to serve as care givers to all the children, and are eager to do so. On cross-examination, Dr. Hirsch candidly admitted that he did not meet the or the older children nor did he have any knowledge regarding the younger children's relationship with the maternal family. Since he had not met the , he stated that he could offer no opinio, positive or negative, about their ability to be effective care givers. As a retained expert witness, Dr. Hirsch's opinions regarding the are, to some degree, to be expected. However, Dr. Hirsch also testified, without contravention, that due to the facts surrounding the death of their mother, the children were at risk of suffering from Post Traumatic Stress Disorder and would be far better off living in a geographical area removed from the source of the trauma. All things being equal, he felt the children would benefit from living with the simply because they would be off Long Island and not exposed to any reminders of their mother's death that might arise from the criminal prosecution. Dr. Hirsch admitted that it wold be somewhat traumatic for the children to move away from their maternal family, but he opined that this trauma would be outweighed by the benefits of living with the . In considering the relative fitness and ability of each of the prospective custodians to provide for the well being of the children, the Court cannot overlook disability due to Multiple Sclerosis. His condition requires that he use a stair glide to go up and down stairs and, although he walked to and from the witness stand without assistance, he relies upon a motorized scooter to get around. On the other hand, testimony revealed that he swims at the local gym and helps to coach his son's baseball team. It cannot be ignored, moreover, that since November of 1999, he has helped to care for two toddlers without incident. This Court also conducted an n camera interview, with the Law Guardian present, of the two older children, age , and age . Neither expressed a specific wish to reside with either the or the and all of their comments were positive as to both sets of caregivers. did state that he liked Grandma and Grandpa's house "with the forest". The Court is satisfied that the children would be content regardless of where they reside. Throughout the course of the fact finding hearing, both parties attempted to demonstrate their own superiority as suitable parental substitutes. The Court finds that neither side has succeeded in this endeavor because both are equally fit. BOth sides are also equally culpable in their efforts to tarnish the other, a stratey about which the Court is not at all appreciative and which the Court finds to be deplorable. Where, as in the present case, the evidence supports the conclusion that the two parties love the children equally and are equally able to care for the children, the nature of the children's "best interest" must be determined not by the negative and futile method of enumerating and contrasting the shortcomings of each party, but rather by considering those factors which are of central importance in disputes of this nature (see, Moorehead v. Moorehead, 197 A.D.2d 517, 602 N.Y.S.2d 403, [2d Dept. 1993]). Moreover, as stated above, where the parties exhibit equally the ability to provide care, a single distinguishing factor may well be determinative. In this case that factor is stability. In this light, a review of the evidence adduced reveals that, although both parties are competent to raise the children, the are in a better positin to do so in any way which would be least disruptive to the children. It is beyond dispute that these four young children have experienced, through the tragic loss of their mother and the incarceration of their father, a trauma of immeasurable magnitude. They have been uprooted from what was most likely, to them, a stable and comfortable environment, only to be separated from each other and placed into a state of flux and uncertainty. It is the goal of this Court to return to these children some of that comfort and stability in a way that will be least traumatic. The have testified as to their plan to provide for the children which includes, inter alia, for the purchase of a home, transfer to Long Island, and a reliance on the trust fund, if necessary. Such plans, although sincere and well intentioned, are none the less tentative and speculative. The on the other hand, offer an existing environment of stability and continuity which, in this Court's opinion, serves the best interest of the children. Based on the foregoing, it is the Order of this Court that temporary custody of be granted to and until such time as is able to acquire custody or until further order of the Court. The Court further orders that shall be entitled to liberal visitation with all of her grandchildren upon therms which are to be agreed between the parties. Moreover, it cannot be denied that and have become an integral part of the lives of these four children , and it would clearly be in the best interest of the children to maintain that relationship. Although the Court lacks the authority to order visitation, the Court is confident that will foster a continuing relationship between the children and their Aunt and Uncle by permitting visitation concomitant with that of their maternal grandmother, .

This shall constitute the decision, judgment and order of the Court. Dated: February 7, 2000
HON. JEFFREY ARLEN SPINNER Acting Judge of the Family Court