New York Family Law Blog
A husband and wife separated in 1982. In their separation agreement, the former spouses agreed that the mother would have child custody and the father would have reasonable visitation rights upon 48 hours’ notice. A New York Family Lawyer said the mother also agreed that the mother would not remove the children more than 200 miles away from New York without their father’s consent. The separation agreement was entered into as a stipulated agreement of a custody petition filed by the father in the family court of New York. The father’s visitation rights were specified to be weekdays and weekend visitation on his days off from work up to a maximum of ten days per month.
A year later, the father applied to the family court to vacate the stipulated agreement because the mother had moved his children to California without his knowledge or consent. The father also moved for child custody be removed from his wife and to be given to him instead.
The mother opposed the motion stating that her husband agreed for her to move to California with their children. She also alleged that her husband who was a New York police officer often threatened her and her children with violence. She also alleged that the father did not frequently visit his children. A New York Custody Lawyer said he visited them for only ten days within a one year period. She also states that in California, she lives in the same house with her two brothers who help her take care of her children. Her parents also live nearby and see the children often.
The mother submitted affidavits executed by the father and step-mother of her former husband which enumerated the inappropriate behavior of the father in relation with his children. He allegedly told his children that their mother slept with other men and the father brandished his gun and would blow them all up.
The paternal grandparents of the children (the parents of the children’s father) also stated that when they visited their grandchildren in California, they seemed more relaxed and happier.
They did well in school and were involved in sports unlike when they were here in New York, they were withdrawn and nervous. They aver that their son (the children’s father) was having personal problems that he had to work out and in the meantime, they insist that their grandchildren are thriving in California with their mother and maternal relatives.
During the hearing before the family court in New York, the father of the children admitted that he was depressed as a result from his wife and children’s move to California. A Nassau County Family Lawyer said he did not deny any of the threats and inappropriate behavior alleged by his wife and his own parents. He also admitted that he had been infrequent with his visits with his children. The father offered no evidence to show that he is a fit to be granted child custody.
The Court however found that the father was able to prove that he only agreed for his children to go to California on vacation to see their maternal grandparents and he only agreed that it would be temporary for the summer and he was assured that they would return to New York. From this, the Family Court ruled that the mother violated the stipulated agreement when she moved her children to California permanently to reside there.
The only question left to be determined is if the family court should enforce the restriction contained in the stipulate agreement that the children will not reside farther than 200 miles from New York.
The family court held that while it is zealous to protect the visitation rights of the father who was not granted custodial rights over his children, there are exceptional circumstances in this case that show that granting the father visitation rights and restricting the residence of the children to within 200 miles of New York is inimical to the interests and welfare of the children.
The family court ruled that while New York and not California is the children’s home state, the children have lived in California for more than six months and have developed close ties there. The evidence pertaining to the children’s well-being, their education , their welfare, protection and training are all readily available in California. Also, the father’s claim for custody is weak. The family court determines that it is in the best interest of the children that the custody of the children be determined in California.
The Court agreed with the family court that New York is an inconvenient forum to determine the custody issue. A Queens Family Lawyer said the father is advised to go to California and address his custody concerns to the family court in California.
Are you wishing to reinstate your visitation rights or child custody rights? Call Stephen Bilkis and Associates. Speak to any of their New York City Child Custody Lawyers. Their attorneys are willing and ready to assist you in presenting your application, in presenting evidence and in arguing your case. Go to any of the offices of Stephen Bilkis and Associates in the New York area.