In its February 14, 2013 decision in Melody M. v Robert M., the Third Department affirmed an order of now-retired St. Lawrence County Family Court Judge Barbara R. Potter which modified a prior joint custody order to award the father sole custody of the parties’ three children (ages 8, 9 and 12). The Third Department also affirmed Judge Potter’s imposition of an order of protection against the mother that prohibited her from, among other things, posting any communications to or about the children on any social network site.
The parties had entered into a separation agreement in 2006 providing for joint custody of their children with alternating physical placement. In February 2009, they stipulated to continue joint custody, but with the father having primary physical custody. In July 2010, the mother commenced the first of the four proceedings determined by Judge Potter’s order, seeking to alter her parenting time so that she would have the two youngest children from Wednesday to Sunday of each week and the oldest child from Sunday to Tuesday of each week. The father opposed the proposed schedule change, filed violation petitions and filed a modification petition seeking, among other things, sole legal custody of the children.
After a hearing, Judge Potter found a change in circumstances sufficient to conclude that the joint custody arrangement was no longer viable and that an award of sole legal custody to the father would be in the best interests of the children.
In making its determination, Judge Potter had noted the pattern of inappropriate behavior by the mother and its effect on the parties’ oldest child, who had mental health issues and received counseling. The mother did not participate in the child’s counseling because she did not like the therapist, or agree with the recommendation that the child needs structure and should follow the same routine in both households.
The mother also testified that she frequently called the father for him to take the oldest child away during her parenting time because she could not deal with his behavior. The mother admitted that she swore and yelled at the oldest child, often resorting to physical means to deal with him.
In addition, the mother utilized Facebook to insult and demean the child, who was then 10 years old, by, among other things, calling him an “asshole.” She testified without remorse that she did so because that is what “[h]e is,” and she thought it was important for her Facebook friends to know this. Charitably stated, her testimony reflected a lack of insight as to the nature of her conduct toward her oldest child.
It was noted that, in contrast, the father dealt more appropriately with the oldest child, participated in counseling with him and ensured that he took his medication. Also, the oldest child’s behavior and academic achievement had improved since the change in physical custody as a result of the February 2009 stipulation. The father’s parenting time did not involve the same type of verbal and physical altercations with the oldest child as often occurred while the children were in the mother’s care.
After agreeing with Judge Potter’s determination that the best interests of the children would be served by granting the father sole custody, the appellate court also agreed that Judge Potter had the authority to issue an order of protection despite the absence of a specific request for one.
Here, the mother’s use of physical force and disparagement of the oldest child on Facebook were subjects of one of the father’s violation petitions. There was sufficient evidence regarding the mother’s inappropriate use of the Internet to demean and disparage the oldest child, as well as her lack of remorse or insight into the inappropriateness of such behavior, so as to justify Judge Potter’s issuance of the order of protection.
Luke J. Babbie, of Poissant, Nichols, Grue & Vanier, P.C., of Malone, represented the father; John A. Cirando, of Syracuse, represented the mother. Verner M. Ingram Jr., of Potsdam, served as attorney for the children.