A New York Family Lawyer said on 5 October 1982, the parties were separated in a matrimonial action by a judgment of separation of the Supreme Court of Queens County. Thereafter, an amended judgment was rendered by the Supreme Court of Queens County, under a different judge, dated 17 November 1987, which, upon a de novo hearing on the issue of custody directed by order of the United States District Court for the Eastern District of New York, dated 18 December 1986, inter alia, directed that the defendant mother return her daughter to the State of New York where the child shall reside with the plaintiff father and awarded custody of the child to the plaintiff father with liberal visitation by the defendant mother in Denver, Colorado, or in New York, with leave to the defendant mother to move for modification of the amended judgment so as to give her custody of the child, with liberal visitation to the plaintiff father, upon submission of appropriate proof that the defendant mother has returned to the State of New York.
A New York Custody Lawyer said the defendant mother appeals from the amended judgment. The appellate court ordered that the amended judgment is reversed, on the law and on the facts, with costs, and custody of the child is awarded to the defendant mother with liberal visitation to the plaintiff father during the Christmas and Easter school recesses and one-half the summer vacation period, with the cost of the child’s airfare between New York and Colorado to be shared equally by the parties.
The events that took place are as follows:
Sometime in 1979, the parties got married. In December 1981, the defendant mother fled the marital home in Queens County because her husband had allegedly beaten her. A Bronx Family Lawyer said she returned the next day. In April 1982, after an alleged continued abuse and a failed attempt at reconciliation, the mother took the parties’ then two-and-one-half year old child and left the marital home to live with her parents in Denver, Colorado.
A Bronx Custody Lawyer said thereafter, the father filed an action for separation and custody of the child in New York. Meanwhile, the mother also began an action for divorce and custody in Colorado. On 5 October 1982, the father was granted a judgment of separation and custody of the child on the mother’s default. However, the mother obtained a stay of the judgment and the judgment was subsequently vacated by order of the Supreme Court of Queens County on 4 May 1983. In the interim on 23 March 1983, in a proceeding in Colorado in which the father appeared and litigated the issues, the mother was granted a judgment of divorce and custody of the parties’ child. On 31 May 1983, the Colorado Court of Appeals affirmed the judgment and the Colorado Supreme Court thereafter denied certiorari on 24 June 1985. On 18 June 1984, the court at bar reversed the order of the Supreme Court of Queens County dated 4 May 1983, and denied the mother’s application to vacate the judgment of separation which had awarded custody to the father.
In November 1985, in the United States District Court for the Eastern District of New York, the father brought an action which resulted in a stipulation between the parties consenting to a full plenary hearing on the issue of custody in the forum directed by the Federal court. In 18 December 1986, the custody issue was referred to the Supreme Court of Queens County which entered the amended judgment appealed from.
After considering the facts of the case, the court at bar reject the father’s contention that the interference with his relationship with his daughter caused by the child’s relocation to Colorado in 1982 warrants a determination that the mother is unfit to act as a custodial parent.
Here, it cannot be said that the mother acted in defiance of any court order in taking the child to live with her parents in Colorado. It must be noted that until June 1984, when the court reinstated the award of custody to the father, there was no judgment or order in effect in New York which required that the child be in the father’s custody. Thus, the extent of the mother’s alleged disregard of the New York judgment of separation is that she kept custody of the child under color of Colorado law, after June 1984. Clearly, the mother’s relocation to Colorado was made in good faith and that exceptional circumstances indeed justified it. The mother relocated so she could reside rent-free with her parents who assisted her in caring for her child, and provided them with emotional support. There is no showing at all that the mother relocated in order to deprive the father of his relationship with their child.
Moreover, the award of custody to the father by the hearing court was based only on its erroneous finding that the mother had disobeyed the directions of the New York courts in refusing to return the child to New York. The hearing court did not make an independent determination as to the best interests of the child which requires a consideration of all relevant factors.
The best interests of the child would be served by allowing her to remain in Colorado with her mother. While it is true that children of a marriage cannot always be shielded from disruptions that follow a divorce, the harm to the now eight-year-old child if she were ordered to return to New York after more than five years in Colorado would far outweigh the inhibiting effect of the child’s residence in Colorado on the father’s relationship with the child. Nonetheless, the child’s best interests still require that she be nurtured and guided by both of her natural parents. Thus, in order to afford the father regular and meaningful access to the child, there must be a liberal visitation schedule under which the father may have visitation with the child at his residence in New York during the Christmas and Easter school recesses and for one-half of the summer vacation period. The cost of the child’s air fare shared equally between the father and the mother.
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