New York Family Law Blog
The parties were married in January 2004, separated about a year and a half later and were divorced on July 13, 2006. They are the parents of a now six-year-old boy born on May 17, 2004. A New York Family Lawyer said the stipulation settling the divorce case granted the mother legal and physical custody of the child. The father had visitation every week from Monday at 8:00 p.m. until Wednesday at 6:00 p.m. The stipulation allowed relocation within 25-miles of the father’s house in the Bronx. The father has had a history of irregular employment and is currently not employed. At the time of trial, the mother, who is remarried, cared for her younger child from her second marriage, full time.
A New York Custody Lawyer said that, after the parties separated, the mother remained in the marital apartment in the Bronx with the child for two years. In the fall of 2007, she began working as a project administrator in the construction field. In 2007, she moved with the child and her boyfriend to Connecticut. The mother testified that she always wanted her son to be in a suburban environment. She stated that she was trying “to mirror my own childhood. I had a wonderful suburban upbringing.” The relationship in Connecticut ended when the boyfriend returned to his native New Zealand. The mother returned to New York with the child and moved into an apartment in Harlem.
A Queens Family Lawyer said that, in March 2008, the mother met her future husband, on Match.com. He was retired from the Air Force, lived in North Carolina and was then involved in a nation-wide job search. Ultimately, he took a job with Northrop Grumman in San Diego. He had requested to work at Northrop Grumman’s Long Island branch, but the company could not accommodate his request. The mother and his future husband became engaged in May 2008. Soon after her engagement, the mother approached the father about moving to California to live with her future husband. The father was concerned about the distance and the stability of the mother’s new relationship.
A Queens Custody Lawyer said that, the parties therefore met with a mediator to try to work out an arrangement by which the mother could leave the child with the father temporarily while she settled in California. The mediator sent a letter, dated May 12, 2008 that purported to memorialize the parties’ agreement. The letter stated that the parties agreed that the child would stay with the father from June 27, 2008 until December 31, 2008, with the mother making several long weekend visits to New York. Mother and son were also to participate in a webcam phone call two to three times a week. The letter did not address where the child would live after December 31, 2008. However, the father refused to sign an agreement embodying these terms and instead asked the mother to sign over custody to him. She refused. The mother left for California on June 26, 2008. She claims that she never intended the father to have permanent child custody, but arrangements to move to California had become irreversible by the time she learned that the father did not agree. The mother gave birth to her future husband’s son on April 4, 2009. She and her future husband were also married in April 2009.
A Bronx Child Custody Lawyer said that, the father filed a petition seeking sole legal and physical custody of the parties’ child, claiming that the mother had abandoned the child. On December 1, 2008, the mother filed a petition for relocation. The court consolidated the two petitions. Before the hearing, the father withdrew his petition for sole child custody. Accordingly, the court considered only the relocation application. It was not until August 2009 that a two-day hearing finally took place. The parties were the only witnesses. The court did not issue a decision until almost a year later, on July 19, 2010, granting the mother’s relocation petition. During the time the parties were waiting for the court’s decision, the child continued to live with the father. After the court’s decision was issued, the child moved to California in compliance with the court’s order.
The respondent appeals from an order of the Family Court, Bronx County, entered on or about July 9, 2010, which granted the mother’s petition to modify the judgment of divorce, Supreme Court, Bronx County, entered on or about July 13, 2006, to permit her to relocate to California with the parties’ child. This appeal, involving a custodial parent’s request to relocate with the parties’ child, falls within the class of cases that “present some of the knottiest and most disturbing problems that our courts are called upon to resolve”.
The issue in this case is whether the mother’s request for relocation should be granted.
The court said that, each relocation request must be considered on its own merits with due consideration of all relevant facts and circumstances and with the predominant emphasis being placed on what outcome is most likely to serve the best interests of the child”. Among the factors the court must consider are: (1) “each parent’s reasons for seeking or opposing the move,” (2) the quality of the child’s relationship with each parent, (3) the impact of the move on the child’s future contact with the noncustodial parent, (4) the degree to which the move may enhance the custodial parents and child’s life economically, emotionally and educationally, and (5) “the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements”. The dissent states that it dictates that the court’s “central concern” should be the impact of the move on the relationship between the child and the noncustodial parent. This interpretation misreads the case. It states that “of course, the impact of the move on the relationship between the child and the noncustodial parent will remain a central concern.” However, it is not “the” central concern. Rather, the case makes abundantly clear that “it is the rights and needs of the children that must be accorded the greatest weight”. Indeed, the Court of Appeals rejected the “three-tiered” analysis that required a court to determine first “whether the proposed relocation would deprive the noncustodial parent of regular and meaningful access to the child”.
There is no reason to disturb the findings of the court that had the opportunity to hear the parents testify and had an in camera meeting with the child. There is a sound and substantial basis in the record for the determination granting the mother’s request to relocate to California with her son.
First, there is no question that the California home is financially more stable than the father’s home. The stepfather has a steady job with Northrop Grumman that provides his family with health insurance. By contrast, the father is not currently working. Although he has been offered a job as a teacher’s aide, he has postponed his start date. He is currently on some type of public assistance and receives money from his parents in Ireland. He readily admits that “it’s not been easy like money wise.” He is not currently in a relationship. Given his bleak financial circumstances, with no career or family in New York, it would appear that there is nothing keeping the father from moving to San Diego himself to be closer to his son.
Further, living in San Diego ensures that the child will grow up in the same house as his half brother. The father agreed that it was very important for the child to have a brother in his life. He even testified that he actually expected the child eventually to move to California so that he could be with his brother; the father was merely opposed to the date of the move. The mother established that the child would have access to an education that was just as good as, if not better than, his school in New York. Moreover, she testified that the future husband’s status as a veteran will allow the child to attend college within the State of California’s university system free of charge.
The record also reflects that the mother went out of her way to facilitate communication between the child and his father. The same could not be said of the father with respect to communication between the child and his mother. Finally, the child’s own attorney recommended that the court permit the mother to relocate with the child, a factor that militates in favor of affirming the result the court reached.
Accordingly, the court held that the order of the Family Court, Bronx County, entered on or about July 9, 2010, which granted the mother’s petition to modify the judgment of divorce, Supreme Court, Bronx County, entered on or about July 13, 2006, to permit her to relocate to California with the parties’ child, should be affirmed, without costs.
Each relocation request must be considered on its own merits with due consideration of all relevant facts and circumstances and with the predominant emphasis being placed on what outcome is most likely to serve the best interests of the child. If you are involved in a similar case, seek the legal advice of a Bronx Family Attorney and Bronx Divorce Attorney. Our Bronx Child Custody Attorney at Stephen Bilkis and Associates can help you.