N.Y. Court to Mom: Remove Rock Painted With Confederate Flag Or It Will Be Considered In Custody Hearing

[Politesse]

I must say, the idea that this woman might just happen to have a white supremacist symbol in her front yard that she never noticed, and once having had it pointed out, refuses to remove it, is construed as some sort of defense of her character. That makes her look worse as a potential caregiver, not better. Like, clearly asleep on the job.

 

[Don2 (Don1 Revised)]

Appeal from an order of the Family Court of Tompkins County (Cassidy, J.), entered October 19, 2018, which, among other things, partially granted petitioner's application, in a proceeding pursuant to Family Ct Act article 6, to modify a prior order of custody.

Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the unmarried parents of a mixed race daughter (born in 2014). When the child was approximately three months old, the father acknowledged paternity. Pursuant to a July 2017 order, the parties stipulated that they would share joint legal and physical custody of the child, with the child alternating weeks with each parent. The mother commenced the first proceeding seeking to modify the prior order by, among other things, awarding her primary placement of the child, with alternating weekend parenting time to the father. The father answered and filed a counter petition seeking to modify the prior order by awarding him sole custody of the child. Following a fact-finding hearing,[FN1] Family Court determined, among other things, that the parties should continue to have joint legal and physical custody of the child, with parenting time on alternating weeks. However, at the suggestion of the attorney for the child, the court expanded upon the prior order by adding a provision that the mother's home shall be considered the child's primary residence for the purpose of schooling. The father appeals.

There is no dispute that a change in circumstances existed since the entry of the order in July 2017; thus, we focus our inquiry on whether Family Court's decision served the best interests of the child (see Matter of Clayton J. v Kay-Lyne K., 185 AD3d 1243, 1244 [2020]; Matter of Sherrod U. v Sheryl V., 181 AD3d 1069, 1069 [2020]). Factors to consider when conducting the best interests analysis include "the past performance and relative fitness of the parents, their willingness to foster a positive relationship between the [child] and the other parent, their fidelity to prior court orders and their ability to both provide a stable home environment and further the [child]'s overall well-being" (Matter of Jennifer VV. v Lawrence WW., 186 AD3d 946, 948 [2020] [internal quotation marks, brackets and citation omitted]; see Matter of Sandra R. v Matthew R., 189 AD3d 1995, 1997 [2020], lv dismissed and denied 36 NY3d 1077 [2021]). This Court generally accords "great deference to Family Court's factual findings and credibility determinations given its superior position to observe and assess the witnesses' testimony and demeanor firsthand, and will not disturb its custodial determination if supported by a sound and substantial basis in the record" (Matter of Daniel TT. v Diana TT., 127 AD3d 1514, 1515 [2015]; see Matter of Clayton J. v Kay-Lyne K., 185 AD3d at 1244).

At the fact-finding hearing, the mother testified that the child lives with her and the mother's two other children. The mother testified that she has lived in [*2]three or four different residences since the time the child was born. The mother also testified that she is concerned about the child's behavior, particularly kicking, spitting, hitting and swearing a lot. The mother stated that the reports from the child's Pre-K program indicate that the child is having behavioral issues that occur during both her and the father's weeks with the child. The mother testified that the father will "make a big thing out of it" every time that she tries to bring up the child's behavior with him, and that he does not communicate well. To that end, the mother testified that the communication between her and the father is poor. She also testified that, although she would like to text the father daily for updates on how the child is doing, she only texts him once or twice a week because the father texted her once saying that she did not need to text him every single day. The mother also claimed that the father attempted to change the child's school without the mother's knowledge and that the child was frequently absent from school on days she was with the father. The mother testified that, when the father picks up the child, she cries and "has a hard time departing." The mother also acknowledged that she had a rock with a confederate flag painted on it at her home. In response to questioning, the mother testified that she has never used any racial slurs in front of the child or at all. Finally, the mother acknowledged that she had not attended any parenting classes despite a provision in the prior order requiring the parents to do so.

The father's testimony also revealed that the mother and the father struggle to communicate, which has led to issues with, among other things, doctor's appointments for the child. The father testified that he went to the child's school after her first day and stated that there was confusion because, in the paperwork submitted to the school, the mother did not list any father. The father testified that the child has issues at school with kicking, swearing and spitting, but the father claims that she does not engage in any of this behavior at home. The father explained that he has talked to the teachers about the child's behavioral issues, but admitted that he has not communicated much with the mother about these issues. The father stated that, since the last order was entered, the mother has changed her residence and that the first he heard of this move was through the child. The father testified that since the child's birth, he has picked her up from seven or eight different addresses. The father explained that the child sometimes arrives with scrapes, bruises and bug bites. The father also testified that he found a bruise on the child, but he could not recall if he ever asked the mother about this mark. The father testified that he has attended several parenting classes. The father stated that the subject child missed several days of school during his time with her because [*3]she was sick. The father acknowledges that he will be moving soon and that the place he is moving to is in a different school district.

We agree with Family Court that the testimony revealed that "little has changed" since the prior order was entered. Thus, only a minor modification of the prior order was needed in the form of providing, among other things, that the mother's home shall be the child's primary residence for the purpose of where the child attends school. Although testimony revealed that the mother had relocated multiple times, the court found, and the record supports, that the mother currently has stable housing. Additionally, although the mother has moved around, testimony established that the father was planning to move as well. Furthermore, although the factor of fidelity to prior orders weighs in favor of the father, as the mother failed to attend a required parenting class, this is only one factor. Family Court clearly appreciated and addressed this concern, as evidenced by the fact that the court explicitly ordered that the mother contact the administrator of a parenting class program within one week of the issuance of the order. Moreover, although communication between the parents is not ideal, it is not so poor as to render a joint custodial arrangement unworkable. In this regard, both parties have the goal of getting back to a place where they work well together. There may come a point in the future where joint custody proves entirely unworkable, but, at this stage, we defer to Family Court's determination that the parties' relationship "is not so acrimonious as to render the award unworkable" (Matter of Patricia RR. v Daniel SS., 172 AD3d 1471, 1472 [2019]; see Elizabeth B. v Scott B., 189 AD3d 1833, 1835-1836 [2020]). It is also noted that this decision to maintain joint custody was supported by the attorney for the child (see Matter of Conway v Gartmond, 108 AD3d 667, 668 [2013]). According due deference to Family Court's credibility determinations and the evidence presented at the hearing, we find that it was in the child's best interests to continue the joint custody arrangement (see Matter of Patricia RR. v Daniel SS., 172 AD3d at 1473; Matter of Richard GG. v M. Carolyn GG., 169 AD3d 1169, 1172 [2019]).

However, we do find that the portion of Family Court's order directing that the mother's residence shall be the child's primary residence for the purpose of where the child attends school must be modified. Although the general idea of preserving the child's current school district has a sound and substantial basis in the record, as it will preserve stability for the child, basing the child's school district on where the mother resides may lead to instability in the future due to the mother's frequent moves in the past. The father does not claim that there is any problem with the current school or that the school in his school district is superior. Therefore, rather than designate the mother's residence [*4]as the primary residence for school purposes, Family Court should have ordered that the child remain in the Dryden Central School District, absent mutual agreement or further court order.

Finally, although not addressed by Family Court or the attorney for the child, the mother's testimony at the hearing, as well as an exhibit admitted into evidence, reveal that she has a small confederate flag painted on a rock near her driveway. Given that the child is of mixed race, it would seem apparent that the presence of the flag is not in the child's best interests, as the mother must encourage and teach the child to embrace her mixed race identity, rather than thrust her into a world that only makes sense through the tortured lens of cognitive dissonance. Further, and viewed pragmatically, the presence of the confederate flag is a symbol inflaming the already strained relationship between the parties. As such, while recognizing that the First Amendment protects the mother's right to display the flag (see generally People v Hollman, 68 NY2d 202, 205 [1986]), if it is not removed by June 1, 2021, its continued presence shall constitute a change in circumstances and Family Court shall factor this into any future best interests analysis.

Egan Jr., J.P., Aarons, Reynolds Fitzgerald and Colangelo, JJ., concur.

ORDERED that the order is modified, on the law, without costs, by reversing so much thereof as directed that petitioner's residence shall be considered the child's primary residence for school purposes; the child shall attend school in the Dryden Central School District until further court order or a mutual agreement between the parties with respect thereto; and, as so modified, affirmed.

Source

 

[Don2 (Don1 Revised)]

Emphasis to this part:
Factors to consider when conducting the best interests analysis include "the past performance and relative fitness of the parents, their willingness to foster a positive relationship between the [child] and the other parent, their fidelity to prior court orders and their ability to both provide a stable home environment and further the [child]'s overall well-being"

 

[Elixir]

Would somebody please go steal the damn rock!

 

[Jarhyn]

Would somebody please go steal the damn rock!

Maybe put it under the hole in that (now apparently revealed as fake) of that one racist dick's toilet chair?

 

[Rhea]

If you all think for one hot second that a Confederate flag at the end of the driveway in Lily-White Dryden New York has ANY meaning other than White Supremacy, you need your head examined.

And if you all think that the biracial child, likely the only one in her classroom, since the population of Black people in that town is 2.3%, is not aware of it, and if you think every other kid on the school bus does not ALSO see it, and know exactly what it means, and say something to her about it, you need your head examined.

People up here do not have a single shred of “Heritage” to hide behind when they display those flags. We all know what it means. And the judge knows this. And the Guardian ad litem knows it.

And the mother knows it.
And the father knows that the mother knows it.
And that child knows it as well.

And the idea of harming a child further because the mother has some “right” to harm the child is clearly not accepted by the court. I don’t know why it’s accepted by you.

 

[laughing dog]

And the idea of harming a child further because the mother has some “right” to harm the child is clearly not accepted by the court. I don’t know why it’s accepted by you.

Exactly. It is not acceptable to harm children. Any legitimate system of jurisprudence ought to recognize that basic idea.

The court has yet to find that this rock does harm the child.

 

[Don2 (Don1 Revised)]

And the idea of harming a child further because the mother has some “right” to harm the child is clearly not accepted by the court. I don’t know why it’s accepted by you.

Exactly. It is not acceptable to harm children. Any legitimate system of jurisprudence ought to recognize that basic idea.

The court has yet to find that this rock does harm the child.

The idea of an actual harm standard is a thing that lawyering people have brought up in defense of the mother. I actually disagree because I think the true standard either is or ought to be risk of harm. I am aware of incidents where, say, an unfenced, unsupervised pool is considered a risk in context of parental custody cases. Here, too, is an additional issue of the father's relationship with the mother made worse by the rock.

That said, I am willing to set aside all such analysis of risk over said rock because I think I am beginning to understand your point. Let's presume the mother is at best a very dumb neo-confederate revisionist. Her views and outward expressions of those views in themselves one at a time are very, very small harms, like the rock. But overall, all that the mother is and does COLLECTIVELY is less suitable to the child's interests than the father's, all other things being equal. In fact, the reason the father brought up the rock must not have even been the specific issue of the rock, but something larger. And that would be why the mother responded with "I do not use racial slurs in front of my daughter" then adding "or anyone else." Or whatever similar thing she said. She understood how everyone perceives the rock, including the father...as a single instance of expression of something larger. In fact, everyone does.

So, then, you would expect the court to order a home study or similar thing, not merely because of this either. The father also observes bruises regularly on his daughter.

Moreover, if you read the whole case, the court is giving the mother far more chances than the father. She objectively has more demerits. Now further, they said they'd not even consider the rock, if she removes it. What? They are forgetting entirely about the issue of very dumb neo-confederate revisionism (at best), white supremacist terrorism at worst, giving her a chance to sweep it all under the rug with a rock.

Meanwhile, conservatives are screaming the white mother's rights are violated when it's actually the child plausibly being harmed and the black father's rights not treated equally to the white mother's.

 

[Metaphor]

Can anybody explain to me what this gobbledygook means?

Given that the child is of mixed race, it would seem apparent that the presence of the flag is not in the child's best interests, as the mother must encourage and teach the child to embrace her mixed race identity, rather than thrust her into a world that only makes sense through the tortured lens of cognitive dissonance.

 

[Jokodo]

Can anybody explain to me what this gobbledygook means?

Given that the child is of mixed race, it would seem apparent that the presence of the flag is not in the child's best interests, as the mother must encourage and teach the child to embrace her mixed race identity, rather than thrust her into a world that only makes sense through the tortured lens of cognitive dissonance.

It means that the child, once old enough to understand what the symbol stands for, is going to have a hard time believing her mother truly and fully loves for what she is if the child is mixed race and the mother puts her white supremacist ideology on public display.

 

[Metaphor]

Can anybody explain to me what this gobbledygook means?

Given that the child is of mixed race, it would seem apparent that the presence of the flag is not in the child's best interests, as the mother must encourage and teach the child to embrace her mixed race identity, rather than thrust her into a world that only makes sense through the tortured lens of cognitive dissonance.

It means that the child, once old enough to understand what the symbol stands for, is going to have a hard time believing her mother truly and fully loves for what she is if the child is mixed race and the mother puts her white supremacist ideology on public display.

The judge should have written that then. Cognitive dissonance has a specific psychological meaning and what you've written isn't it.

Also, the judge then appears to be saying "the mother should disguise her mixed feelings for her daughter as if instead she felt unconditional love."

 

[Rhea]

And the idea of harming a child further because the mother has some “right” to harm the child is clearly not accepted by the court. I don’t know why it’s accepted by you.

Exactly. It is not acceptable to harm children. Any legitimate system of jurisprudence ought to recognize that basic idea.

The court has yet to find that this rock does harm the child.

Did you mean to say the court “has found” because the court declared that the mother must remove it.

 

[Rhea]

Can anybody explain to me what this gobbledygook means?

Given that the child is of mixed race, it would seem apparent that the presence of the flag is not in the child's best interests, as the mother must encourage and teach the child to embrace her mixed race identity, rather than thrust her into a world that only makes sense through the tortured lens of cognitive dissonance.

It means that the judge sees absolutely no way to reconcile the presence of the flag with the love and care for the child.
That the presence of that flag at the house of a black child represents an indefensible conflict between hate and supposed love and that its presence forces a six year old child to try to understand herself at the center of it. And that it would require a tortured cognitive dissonance to say otherwise.

 

[Jarhyn]

Can anybody explain to me what this gobbledygook means?

Given that the child is of mixed race, it would seem apparent that the presence of the flag is not in the child's best interests, as the mother must encourage and teach the child to embrace her mixed race identity, rather than thrust her into a world that only makes sense through the tortured lens of cognitive dissonance.

It means that the judge sees absolutely no way to reconcile the presence of the flag with the love and care for the child.
That the presence of that flag at the house of a black child represents an indefensible conflict between hate and supposed love and that its presence forces a six year old child to try to understand herself at the center of it. And that it would require a tortured cognitive dissonance to say otherwise.

That's how I read it myself, ya.

It's impossible to hold the concepts of "I am loved" and "I am subhuman, 3/5ths at best of a person and worthy of being Chattel" without cognitive dissonance, and that kind of dissonance is not healthy for a child to hold. This is the message you get from a powerful and captive mouthpiece when it comes from a parent's expression.

It is an abusive act to set this kind of dissonant set of beliefs in someone's head.

 

[Angra Mainyu]

I must say, the idea that this woman might just happen to have a white supremacist symbol in her front yard that she never noticed, and once having had it pointed out, refuses to remove it, is construed as some sort of defense of her character. That makes her look worse as a potential caregiver, not better. Like, clearly asleep on the job.

Who is arguing that?

 

[laughing dog]

And the idea of harming a child further because the mother has some “right” to harm the child is clearly not accepted by the court. I don’t know why it’s accepted by you.

Exactly. It is not acceptable to harm children. Any legitimate system of jurisprudence ought to recognize that basic idea.

The court has yet to find that this rock does harm the child.

Did you mean to say the court “has found” because the court declared that the mother must remove it.

From what I can tell, the court has declared it appears that it might be harming the child or has the foreseeable potential to harm the child But I could be wrong. It would be clearer if the court made a declarative statement to the effect that the Confederate flag rock harms the child.

As others have pointed out, if this woman really cared about her daughter, that rock would be gone as soon as it was pointed out.

 

[Loren Pechtel]

Can anybody explain to me what this gobbledygook means?

Given that the child is of mixed race, it would seem apparent that the presence of the flag is not in the child's best interests, as the mother must encourage and teach the child to embrace her mixed race identity, rather than thrust her into a world that only makes sense through the tortured lens of cognitive dissonance.

It means that the judge sees absolutely no way to reconcile the presence of the flag with the love and care for the child.
That the presence of that flag at the house of a black child represents an indefensible conflict between hate and supposed love and that its presence forces a six year old child to try to understand herself at the center of it. And that it would require a tortured cognitive dissonance to say otherwise.

Which is also how I see it.

Once the child understands the message it's a clear sign that her mother in at least one sense hates her. I believe the woman has demonstrated she is unfit to raise this child.

 

[Loren Pechtel]

Can anybody explain to me what this gobbledygook means?

Given that the child is of mixed race, it would seem apparent that the presence of the flag is not in the child's best interests, as the mother must encourage and teach the child to embrace her mixed race identity, rather than thrust her into a world that only makes sense through the tortured lens of cognitive dissonance.

It means that the judge sees absolutely no way to reconcile the presence of the flag with the love and care for the child.
That the presence of that flag at the house of a black child represents an indefensible conflict between hate and supposed love and that its presence forces a six year old child to try to understand herself at the center of it. And that it would require a tortured cognitive dissonance to say otherwise.

Which is also how I see it.

Once the child understands the message it's a clear sign that her mother in at least one sense hates her. I believe the woman has demonstrated she is unfit to raise this child.

 

[James Madison]

Wow... So reading some of the posts in this thread, I'm really hoping a lot of the posters here are NOT parents. Especially James.

The discussion seems to be along the lines of deciding what is in the best interests of the child vs what is in the best interests of being legal. Seems the court is legally bound to decide what is in the best interests of the child. That makes sense.

As an ethnic minority, with brown skin, I’m not thrilled by the mom’s act of a confederate flag painted onto a rock on her property. However, the mom has a constitutionally protected right to choose what kind of political, religious, moral, and economic belief system to raise her child in.

So the mom can choose, what, anything? Really? I can think of lots of shit the court would not perceive as being in the child's best interests but is nevertheless all quite legal.

Except “everything” doesn’t have a corresponding right in the U.S. Constitution. Generally, the political or philosophical beliefs of a parent aren’t to be considered in a best interest of a child analysis because of the 1st Amendment speech.

 

[James Madison]

As a society we routinely pass judgement on a person's ideological position. We all do it. Courts do it whether they think they do or not. If any person thinks he or she is immune to such behavior, legally or otherwise, then such a person is merely contemplating angels on pinheads regardless whether they are a judge or a sanitation engineer.

So what if “society routinely” does what you say above. “Courts” play by different rules.