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Court Decides of Petition for Relocation Should be Granted

A New York Family Lawyer said that, the petitioner/mother, and the respondent/father, were divorced by judgment of divorce, dated February 14, 2000 and entered by the Nassau County Clerk on February 15, 2000. The judgment of divorce granted the parties joint legal custody of their children. Physical custody was awarded to the petitioner, subject to the respondent’s right to visitation as set forth in their separation agreement, dated August 31, 1998, which was incorporated (but did not merge) with the judgment of divorce. The separation agreement provided, among other things, that the father would have mid-week overnight visitation with the children.

A New York Divorce Lawyer said that, on April 17, 2003, the petitioner filed an application with this Court for modification of the visitation provisions of the judgment of divorce. The petition requested that the respondent’s mid-week visitation be eliminated, as it was “not practical” because her new husband, Andrew Smith, had secured employment in the Albany, New York area. The petition stated that she and her four children (the two children and the two children of her current marriage) would relocate to the Albany area to join her husband on or about June 30, 2003, at the end of the school year.

A New York City Family Lawyer said that, on June 5, 2003, the Court ordered that the parties submit to an investigation and report with the Nassau County Probation Department, Family Division. The Court also ordered that Ms. Susan Silverstein, forensic evaluator, prepare a report. On June 30, 2003, the respondent filed an order to show cause with this Court, requesting that the petitioner be enjoined from relocating the children from her residence or, alternatively, why the respondent should not be given custody of the children. A temporary order was made thereafter, dated August 28, 2003, which restrained the petitioner from leaving the jurisdiction of this Court with the Jones children until the time of hearing. The petitioner made arrangements for Joe and Ann to remain in the same school district in Nassau County for the start of the 2003-2004 school year by residing with their maternal grandmother.

A Nassau Child Support Lawyer said that, the parties share legal custody of the children, with residential custody to the petitioner, as a result of their judgment of divorce. In January 2001, almost one year after the parties’ divorce was concluded, the petitioner married her current spouse, who was employed by the Village of Williston Park at the time. After the marriage the petitioner, the children, and eventually the two children of this second union lived in Williston Park in a house owned by the parents. An increase in property taxes led the parents to decide to sell the house in which the petitioner and their son lived.

A Manhattan Family Lawyer said thereafter, and as a result of that conversation with his parents, he began to search for a new job, in an effort to effectuate this relocation. In March of 2003, he was offered a job with a waste and recycling company in the Albany area. Although it is the petitioner’s contention that she discussed the possibility of relocation with the respondent, there is some dispute as to whether the respondent initially voiced any objection. In any event, Mr. Smith accepted the position and the Smith’s house was placed on the market. The house was sold and his parents purchased a home in Ballston Spa for the petitioner, Mr. Smith, and the children. The petitioner ultimately commenced the subject proceeding to terminate the respondent’s midweek overnight visitation.

A Nassau Divorce Lawyer said that, petitioner seeks modification of the parties’ Judgment of Divorce, dated February 14, 2000, and separation agreement dated August 31, 1998, which was incorporated by reference. It should be noted that the petitioner has not asked the court for permission to relocate with the children. Rather, the petitioner’s modification petition made clear that the petitioner had already decided to relocate with the children, and sought modification of the controlling visitation provisions by terminating the respondent’s overnight midweek visitation. The respondent, in his order to show cause, seeks to prevent the petitioner from relocating the children.

The issue in this case is whether the petition for relocation should be granted.

The Court of Appeals’ decision in the 1996 case is the cornerstone for law governing relocation matters in New York State. In the said case, the Court of Appeals formulated a “best interest standard” and held that each particular relocation application should be decided on its own merits, after consideration of all facts and circumstances, with the “predominant emphasis being placed on what outcome is most likely to serve the best interests of the child”.

The Court set forth a series of “factors” to evaluate when making a relocation determination. These are: (1) each parent’s reasons for seeking or opposing the move, (2) the quality of the relationships between the child, the custodial and non-custodial parents, (3) the impact of the move on the quantity and quality of the child’s future contact with the non-custodial parent, (4) the degree to which the custodial parents and child’s life may be enhanced economically, emotionally and educationally by the move, and the feasibility of preserving the relationship between the non-custodial parent and child through suitable visitation arrangements.

While these “factors” have been set forth by the Court of Appeals, they are not all inclusive or to be strictly applied. Rather, the final determination rests with the court, based upon all the proof in the case, and “whether it has been established by a preponderance of the evidence that a proposed relocation would serve the child’s best interests”.

This court has duly considered and examined the testimony of the various witnesses. This court also based its decision on the in-camera with the Jones children and the recommendation of the Law Guardian. Each relocation case must be decided on its own merits. The greatest weight must be afforded to the best interests of these children. The factors set forth in in the said case have been weighed against the evidence put forth by petitioner. Therefore, in applying the principles set forth above to the instant matter, in accordance with the decision rendered from the bench after hearing on January 27, 2004, and after having thoroughly considered and reviewed all relevant factors this court finds that the petitioner has failed to meet her burden of proof, by a preponderance of the credible evidence, that a relocation would serve the best interests of the children. Moreover, although the children are not so advanced in age that their wishes should be the overriding concern, it is clear that they would feel more comfortable remaining with their father.

Accordingly, the court held that the custody and visitation provisions of the parties’ judgment of divorce and separation agreement are hereby ordered modified. The parties shall continue to share joint legal custody. Physical custody is transferred to the respondent. The petitioner shall have visitation with the children on the first and third weekends of every month. The petitioner shall exercise one of these weekends in Nassau County, and may exercise the other in Ballston Spa, New York. With the exception of the midweek overnight visitation, which is eliminated, any additional visitation provisions specifically set forth in the parties’ judgment of divorce and separation agreement that belonged to the respondent shall now belong to the petitioner.

In a petition for relocation of a child, the court should consider the best interest of the child. If you want to contest the relocation of a child, seek the legal advice of a Nassau Order of Protection Attorney and Nassau Child Custody Attorney at Stephen Bilkis and Associates. Call us for more information.

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