New York Family Law Blog
The Facts:
Petitioner and respondent are the natural parents of a 7-year old child, born on 11 October 2002, who has lived continuously with the mother. The parties were never married and the mother is currently married to another. The mother also has a 1-year old daughter, born on 14 December 2008.
A New York Family Lawyer said the mother and father lived together for approximately three to four years before he left the household when the child was approximately three years old.
On or about 4 May 2009, the respondent-father has been incarcerated in the Livingston County Correctional Facility, a medium security prison run by the New York State Department of Corrections, after his conviction for Criminally Negligent Homicide involving an incident having nothing to do with the mother or child herein. His maximum release date is May 2012 although he is appealing his latest parole denial which, if successful, would give him a release date of May 2011. The father’s parents are deceased. He has two other sons, ages 27 and 24, who live in Penn Yan. He also has four sisters and various nieces and nephews who live in the surrounding area. It appears that only his oldest son has seen the child very often.
The father was current on his child support obligations from the time he left the family household until the time he was sentenced to state prison. The father has always known where the mother and the child live as he used to live in the same house. He states that he has mailed letters and hanky drawings he makes in prison to the child. He asserts that he believes that the mother doesn’t give the letters to the child so he has sent them to his older son to deliver. However, a New York Custody Lawyer said no independent proof was presented that the mailings were kept from the child or that the father’s oldest son in fact delivered them. The father said he sent one letter to the mother from prison wherein he apologized for his past behavior towards her and he still had feelings for her because of the fact that they have a child together. Before his latest incarceration, the father would visit with the child. They would also visit other relatives but because his time was limited he would try to spend it all with the child.
Sometime in 2005, the mother was the subject of a neglect proceeding where the child was removed for a short period of time due to the fact that there were allegations that the father’s nephew, age 14, was molesting the child and that the mother was having the nephew babysit for the child. The proof also showed that the nephew would babysit for both the mother and the father at times when they lived together. The child was soon returned to the mother under the supervision of the Department of Social Services and a “refrain from” order of protection (now expired) was entered.
The mother has lived in Penn Yan for six years. She owns her own home. There is a mortgage and the house has not been listed for sale. It is a two-story house with three bedrooms and one bathroom. She lived there with the child and the father until he left and then for approximately three years with her current husband until he moved back to North Carolina in June of 2010 with their daughter. A Nassau County Family Lawyer said the current husband took a job as a plumber’s assistant for his brother. This location is approximately ten hours from Penn Yan, although there is a major airport nearby.
Sometime in March of 2010, the mother filed the instant petition for relocation, three months before her husband went to North Carolina, because she felt it was in the best interests of her entire family. Petitioner-mother seeks a modification of the respondent-father’s visitation in order to allow her and the parties’ son to relocate to the State of North Carolina with her current husband and their infant daughter.
The father opposes the proposed move.
The Ruling:
The Court places the burden of proof on the parent seeking relocation. In this respect the party seeking to modify the custody visitation order must aver a change in circumstances demonstrating a need for modification to ensure the child’s best interests. Visitation with a non-custodial parent is presumed to be in the child’s best interests even when the parent is incarcerated.
Here, even though the mother has sole custody she must show that relocation serves the child’s best interest and not what’s in the mother’s or entire family’s best interest and just because the mother has sole custody does not excuse this burden.
The use of a “fresh start” should be combined with other factors when proposing relocation, such as lower cost housing, free child care, which may present a more compelling scenario as contrasted with a move based solely on a “fresh start”.
The Court finds that neither parent has improper motives for requesting or opposing the move. Indeed, both parents recognize the importance of the other parent in the child’s life. However, the Court is concerned that the mother’s husband moved to North Carolina with their daughter, found plumbing work with his brother and living quarters only three months after the mother filed her petition, knowing full well that his wife could not leave New York with the child without agreement or the Court’s permission; while at the same time he only looked for plumbing work within the Village limits of Penn Yan. In addition, the mother owns her own home in Yates County which has a mortgage and is not currently listed for sale. The mother also had a full time job in Yates County as a CNA until recently when she quit for a vacation. She may feel confident that she can get similar employment in North Carolina but she has not taken the required test or presented any proof that someone will hire her.
Moreover, equally troubling is the mother’s opinion that the child’s current school system is not medicating the child properly; she has not worked with Crestwood Children’s Center including recently declining services stating that she probably would be moving out of the area.
On the other hand, a Queens Family Lawyer said the father is currently in prison with a maximum release date of May 2012. The proof showed that he was current on his child support and exercised his visitation on a regular basis. In fact, he petitioned twice to modify his visitation resulting in the parties stipulating to do just that. Although he has not petitioned the Court for visits in prison, they are not forbidden. He also states that he has written and sent things to the child while incarcerated.
Notably, most of the child’s extended family resides in or around the Yates County area. Although it is generally preferable not to split siblings, the split herein has been caused solely by the current husband moving to North Carolina with their young daughter prior to the Court’s determination.
The court finds that there is no economic necessity for the mother’s move given her quitting her job; not having employment in North Carolina and the current husband’s minimal search for New York employment. Even housing is questionable since she leaves the home she owns in New York on which there is a mortgage and moves to a rental property with an option to purchase. Nor was any proof presented to show the comparison of food costs, utilities or other day to day living expenses. Even child care is questionable in North Carolina since the current husband cared for the children in New York while the mother worked alleviating some day care expense but in North Carolina, day care could become an issue since the current husband will be working and the mother would work or go back to school. Clearly, this is not a “fresh start” or economic necessity for the mother and her current husband.
On another note, considering a change in custody from the mother to the father is not appropriate as the father is currently incarcerated and no other relative appears suitable to assume custody. However, the reasons for the move are not justifiable given the circumstances, to wit: a diminished or static economic opportunity; the child’s educational opportunities have not been shown to be better; day care is now an issue if mother and her husband both work or the mother goes back to school which was not the situation in New York. The situation into which the mother wants to relocate is at best precarious and not in the child’s best interests. The mother and husband have created a self-imposed hardship after the petition was filed and before the Court has made a determination. The child’s quality of life at the new location is questionable. The comparison of the economic issues was not sufficiently proven and the employment opportunities have not been shown to be unique or enhancing to any significant degree. Although the father appears to have extended family nearby, there was no proof that there has been any close bond between the extended family and the child. Therefore, these limited contacts do not affect the child in either a quantitative or qualitative sense.
Furthermore, the proposed move would leave the father without meaningful access to the child, causing a valuable asset in the child’s life to be diminished. Slowly but surely this long-distance relationship between the father and son would wither or at least weaken as the child grows older, and the prospect of leaving school friends, missing sporting events or other activities held during recess or during summers becomes less attractive to a youngster not to mention that once the mother secures a job she will surely be limited in accompanying the child to New York.
Indubitably, the distance between Penn Yan and North Carolina, is a lengthy drive and may deprive the father of a meaningful opportunity to maintain a close relationship with his son, not to mention the economic costs of the same and the father’s incarceration.
In sum, the mother has not established, by a preponderance of the evidence, that the proposed relocation would serve the child’s best interest; the petition for relocation is denied; the mother shall continue to have sole custody of the child; the current visitation order is modified to include that the respondent-father shall have visitation with the child at the correctional facility as arranged between the parties; the child shall not be removed, by either parent, from New York State except for temporary vacation periods without the prior written order of the Court or the prior written consent of the parties; any questions relative to medical, child support, child care and like matters are referred to the Support Magistrate upon proper application of either party; and all other motions of the parties or the child’s attorney, including but not limited to, motions upon the hearing herein and reserved by the Court, not consonant with the herein findings of the court or not expressly granted are denied.
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