Court Decides on Relocation of Child
In the instant proceeding, the petitioner/father seeks to modify custody and enjoin the parties' six and half year old child (“the child”) from relocating with the custodial parent, the respondent/mother to the Aramco compound in Dhahran, Saudi Arabia.
A New York Family Lawyer said the respondent opposes the petition to modify custody and requests permission to allow their child to permanently reside in Saudi Arabia with respondent, respondent's husband or the child’s “Step-Father" and the child’s two half-siblings.
Is it in the child’s best interest to award petitioner custody and compel the child to remain in New York with petitioner or to maintain custody with respondent and allow the child to relocate to the Aramco compound in Dhahran, Saudi Arabia?
It is axiomatic that disputes over relocation can be most problematic, emotional and difficult for all concerned. A Nassau County Family Lawyer said the relocation to Saudi Arabia by its very nature would mean a dramatic change in the child’s life and in his relationship with his father, the non-custodial parent. Such a distant relocation has the potential, as the petitioner fears, to interfere with or even defeat future meaningful involvement between the child and his father. The decision is made even more difficult when it was clear from all of the testimony at the trial that both the petitioner and respondent are loving, caring and giving parents and that the child has a deep loving, committed and caring relationship with both of his parents.
While the respective rights of the custodial and noncustodial parents are unquestionably significant factors that must be considered, it is the rights and needs of the children that must be accorded the greatest weight, since they are innocent victims of their parents' decision to divorce and are the least equipped to handle the stresses of the changing family situation.
It must be noted that, regardless of the outcome of the herein matter, respondent will be leaving New York City with her two younger children, the child’s siblings, to join the step-Father who has already moved to Dhahran to pursue financially rewarding employment with Aramco. Accordingly, although the court finds that maintaining the status quo would undoubtedly be in the child’s best interest and is something that the child himself would desire; to compel such an outcome is regrettably outside this court's power. While the court has the power to enjoin the child from relocating to Saudi Arabia upon a finding that custody with petitioner is in the child’s best interest, the court may not enjoin respondent from relocating without the child.
The court in making its decision has considered and balanced all of the many different and relevant factors which are appropriately considered in determining which of the outcomes is in the child’s best interest.
While it is clear that "exceptional circumstances" do not exist, however, it is equally clear that respondent's request to relocate to Saudi Arabia is brought in good faith, to promote continued stability for the child and his siblings, to maintain or strengthen respondent's financial position without sacrificing her legitimate and established desire to care full-time for the child and his siblings, and to otherwise improve the family's quality of life. A Nassau County Child Support Lawyer said the desire for such pursuit has been recognized in a landmark case to be proper factors in considering a request to relocate.
An additional indication behind the legitimacy of respondent's decision to seek relocation to Saudi Arabia was that she herself was raised in the Aramco compound in Dhahran, Saudi Arabia. Indeed, respondent testified that her father was employed by Aramco and that she was happy growing up in Dhahran, has fond memories of going to school there, and that she thrived in what she credibly describes as a comfortable, safe, privileged and secure environment. Respondent acknowledges that it was her idea to encourage her husband to seek employment from Aramco in a position as a civil engineer. The court heard that respondent used some of her contacts from her days in Dhahran to help her husband secure his new employment with Aramco. While the court finds that stepfather, from his own statements, failed to make great efforts to obtain comparable employment in the United States, the opportunity in Saudi Arabia now presents itself as a means for financial independence with many potential additional benefits flowing to the child and his family.
The court finds that to compel the child to live here in New York away from his mother and siblings without the benefits of any extended family support would not be in his best interest notwithstanding the fact that he has a good relationship with his father. The child has always known and enjoyed the supportive benefits of his "stay at home" mother and the company and developing relationship with his younger siblings. In addition, the child has developed a healthy and loving relationship with his stepfather who loves and treats him equally to his own two children.
Moreover, petitioner has not attempted to secure gainful employment sufficient to support his child despite pressing his efforts over a long period of time to obtain custody and enjoin his child’s relocation. His income tax returns and net worth statements do not show that he has the necessary income to provide for his child’s minimum needs should the court grant his application and award him custody of his son.
While economic stability is not the only criteria and should not be given greater weight than the numerous other factors to be considered by the court in weighing the child’s best interests, it remains a legitimate factor not to be discarded.
To be sure, both parents are capable and would provide the child with an equal amount of love and emotional support. Respondent, however, has been the child’s primary nurturer since his birth. In addition, in respondent's continued care and custody, the child would also maintain the additional loving and emotional support that his siblings undoubtedly already have given to him and will provide him in the future.
On the quality of education provided in the Aramco compound, the court can only conclude that compared to the school system in Coxsackie, New York, both appear capable of educating its students. Both systems seem to have succeeded to the degree that they have educated individuals in the past and, with the help of parents, appear capable of educating children in the future. Also, the court must take into account the fact that the child, should his stepfather remain employed by Aramco when he is ready to enter High School, will be able to attend a first class private school at no cost to his parents. It is likely that the child would then be able to attend a good college which eventually would provide him with the tools to compete in the employment market as a well-educated person.
On fear of physical danger to the child as a potential victim or target of an anti-American sentiment in Saudi Arabia or terrorism, the court is deeply troubled by the prospect of sending the child to such area. Unfortunately, the court is also aware that there is no place in the world where a person is absolutely safe from a terrorist attack or, indeed, where a person is safe from an attack of random violence. The court must conclude that it cannot insure the child’s absolute safety anywhere in this turbulent world. It may be that the child might be as safe or even physically safer in the Aramco compound in Dhahran where he will be in a secured environment protected not only by Aramco's security force but, if necessary, by the United States military which is stationed in close proximity to Dhahran.
There is no doubt that in exchange for a physically "safe" environment in the Dhahran compound, as petitioner urges, the child may sacrifice the more expansive freedom of speech, freedom of assembly and freedom of dress which would otherwise be afforded to him in America. The court acknowledges the fact that individuals living in the Aramco compound in Dhahran will not have the pleasure of participating in the many varied cultural activities available in New York City or other large metropolitan areas. However, the court will note that this fact is true for many Americans not living in or near a large metropolitan area solely because this kind of culture is not something that interests them or because they do not have the means to travel and participate in these activities.
Finally, as it concerns the lack of cultural outlets in the compound, the court believes that this can be compensated and rectified during the frequent periods when the child will be out of school and vacationing with his family or visiting with petitioner. The court also believes that in this day of "instant communication" through the use of computers, television, videos and other techniques, the issue of cultural deprivation as a result of isolation is not as problematic as it may have been before the tools of modern life: the child will be able to share in the arts, theater and music, if not necessarily in person, then through the use of modern communications.
As noted, maintaining the status quo is not an available outcome for the herein court to compel. The testimony presented in support of petitioner focuses upon the conclusion that his child "is far more attached to him than to either of his siblings. Such a conclusion, even if supported by the record, entirely ignores the importance of maintaining the child’s present relationship with his mother, his primary nurturer since birth. Based upon the credible testimony at the hearing, including the court's in-camera interview with the child, the court finds insufficient factual support for such a conclusion. The facts indicate that the parties were never married and that petitioner has only alternate weekend and Monday visitation.
The court viewed home videos showing the child with his mother, stepfather and his two half siblings. The first tape, presented by respondent, was created after the commencement of the trial but the second tape, presented by petitioner, showed the child at home with the family prior to the beginning of the trial. Both video tapes, while painfully repetitious, nevertheless showed the child acting as a normal child, playing with his siblings or by himself. Respondent's tape, while created for purposes of this litigation, did portray a normal and close knit family unit.
Petitioner's concerns for his right to continued visitation present the most troubling aspect in the herein matter. While respondent has assured petitioner and the herein court that the child shall be allowed the significant time noted above to visit with petitioner in New York, enforcement for non-compliance of this promise, including a potential change in custody to petitioner, would not be a practical remedy simply because the relocation to Saudi Arabia will place the child and respondent outside the jurisdictional power of the court for purposes of enforcing the court's directives.
Nonetheless, the court finds that the quantitative and qualitative losses that petitioner may suffer for a meaningful access with his child do not outweigh the benefits of the relocation. In addition, the court finds that if relocation were not permitted, the child would be deprived from the existing and meaningful relationship with his mother and siblings which would cause great pain and turmoil and would not be in the child’s best interest.
While the court cannot guarantee petitioner enforcement of his rights to continued meaningful visitation and contacts with his son and such rights are indeed invaluable and priceless to both petitioner and his child, respondent's compliance with the following conditions before relocation is permitted may provide some deterrent against respondent's failure to abide by the visitation schedule she herself has promised, to wit: the posting of a bond; submit to the continuing jurisdiction of the herein court as it concerns future visitation and custody disputes; propose a visitation schedule with proof that reservations were made and round trip airline tickets were already purchased for the child’s first scheduled visit with petitioner; hire, at respondent’s expense, a computer consultant in both New York and Dhahran to select, purchase and set up compatible computer systems with laser printers in both petitioner's residence in New York and in the child’s new residence in Dhahran to enable petitioner and son to communicate on the internet and by fax; the child’s computer system shall be placed in his bedroom which will be accessed through a dedicated phone line; the child’s room shall have a telephone with an answering machine and a separate dedicated phone line for petitioner and the child to utilize; and, respondent shall propose a reasonable schedule of communication and provide proof that the aforesaid systems and telephone have been installed, are fully operational and that the dedicated phone lines are in place.
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