New York Family Law Blog
A mother filed a motion to modify their divorce decree by deleting the requirement that she must reside with her three children within a radius of fifty miles of New York City. A New York Family Lawyer said the purpose of her application was to relocate the children with her. The father however cross-moved for sole custody of the children or, in the alternative, for an order conditioning the mother’s right to custody on her continued residency with the children within the aforementioned fifty miles radius.
Pursuant to the agreement, the father had the right to visit the children at any time on reasonable notice to the mother, and to have the children spend with him alternate weekends from Friday evening to Sunday evening. A New York Custody Lawyer said the children went to summer camp, the father had the right to have any or all of them spend one-half of the remaining summer vacation time with him.
A Queens Family Lawyer said the mother stated that she wanted to relocate because she would be able to secure for them, similar if not, superior educational advantages without costs as well as outstanding recreational and summer activities at minimal costs. As for herself, she would be able to pursue her career in advertising and sales promotion which she could no longer do in New York City and at the same time spend more time with her children.
A Long Island Family Lawyer said that after the proceeding, the trial court found that the best interests of the children would be served by changing their residence. The father was also awarded the same visitation rights that granted him originally plus the right to have the children with him for their entire summer vacation or any part thereof.
The court also stated that scholastically, environmentally and recreationally the relocation would be beneficial to the children, that the new climate would improve the eczema condition of the older child, and that the part-time free lance employment of the mother would enable her to spend more time at home with the children.
As further justification for the change, the trial court observed that although the father was a generous and loving, his love for the children was passive in that he did not take full advantage of his liberal visitation rights, never took any of them on vacation and did not take as much parental interest in their scholastic work or progress as one might have expected.
Sources revealed that the trial court’s findings, with minor exception, are not supported by enough evidence in the record. Furthermore, those findings which are substantiated by the record do not justify the severe relief accorded with the mother.
Further, a parent may not be deprived of his or her right to reasonable and meaningful access to his/her children unless exceptional circumstances have been presented to the court. Sources revealed that the term exceptional circumstances or exceptional reasons is invariably associated with a situation where either the exercise of such right is unfavorable to the welfare of the children or the parent has in some manner forfeited his or her right to such access.
The trial record is devoid of evidence which even suggests that maintaining the status will result either in permanent harm to the children or even cause them some temporary inconvenience. Contrary to the finding of the trial court, no evidence of significance was presented to support its conclusion that the educational facilities of the county are superior to any located in New York City or the fifty miles surrounding area.
As the trial court’s reference to the climate ameliorating the eczema condition on the leg of the parties’ daughter, it should be noted that no competent medical evidence was presented that such condition could not be corrected in the area by a skilled dermatologist.
Testimony was also presented that after the father relocation he continued to see the children at least once during the middle of each week and took them to his new home two weekends each month. He also called them several times a week, saw them on their birthdays and never missed a visiting day when the children were at summer camp. The record indicates he participated in their school activities, including parent-teacher conferences, and comforted them and manifested deep parental concern whenever they were ill. The aforementioned and other facts found in the record clearly demonstrate that the father was not only a concerned parent, but also took an active interest in the children’s educational, spiritual and material welfare.
The mother admitted that the children needed the father’s counsel and guidance. It should also be noted that during the approximately eight years between the parties’ separation and the making of the motion, the father has been constant in his payments for child support.
Based on records, the trial court has also based its modification of the divorce decree on the fact that at an in camera hearing revealed that the three children showed a desire to move with their mother. However, they also expressed strong affection for their father and indicated that he was a loving, concerned and respectful parent.
The court stated that while the children’s attitudes should be given consideration, their wishes are not necessarily determinative. The best interests of a child, particularly over a long term, often require the overbalancing of desires by more dependable objective criteria. In the instance, other than the children’s wishes there was no change of situation with respect to the crucial matter of fitness, to justify a modification of the provisions which the parties themselves determined more than eight years ago were in the best interests of the children.
Since the three children are presently residing with their mother pursuant to the order appealed from, the mother should return with them to the state within ten days after the end of the current school term. The mother should also resume her residence with the children within the fifty miles radius of New York City prescribed by the separation agreement, in order that the father may continue to enjoy his custody and visitation rights under the separation agreement and the decree.
Sources revealed that the order should be modified and the mother’s motion must deny. Further, the father’s custody and visitation rights should remain in accordance with the terms of the separation agreement between the parties. The mother’s right to continued child support is conditioned upon her resuming her residence with the children in the City of New York or fifty miles radius thereof within ten days of the end of the current school term. Moreover, the denial of the father’s cross motion for sole custody should be affirmed.
As a result, the order of the Supreme Court is modified, on the law and the facts, by deleting there from the provisions which granted the mother’s motion and substituting there for a provision denying the said motion.
Consequently, the mother is directed by the court to return to New York State with the children and resume a residence within New York City or within a radius of fifty miles thereof within ten days after the end of the current school term. In the event that the mother fails to comply, the father shall be relieved of his obligation to pay child support until such time the mother complies.
Every parent wants the best for their children. However in some cases, there are rules that a couple must follow especially if it is a court order. Whenever you need legal guidance with the same matter, you can ask assistance from the New York Family Lawyer or New York Divorce Attorney. Somehow, if you want to gain your child’s sole custody, you can hire the NYC Child Custody Lawyers at Stephen Bilkis and Associates.