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Court determined that it was in the best interests of the children to remain in New York and not move with their father to Massachusetts. Matter of Daniel W v Lauren S 2021 NY Slip Op 51146(U)


Generally, custody orders prohibit a parent from relocating with the children without the consent of the other parent, even if the parent is the custodial parent. When a parent wants to relocate with the children, the stage is often set for a custody battle.  In determining this issue, as always, the court will do what is in the best interests of the child.

In Matter of Daniel W v Lauren S the court was asked to determine whether to allow the father to relocate with the children to their hometown despite opposition from the mother. As a result, each party sought sole custody of the children and primary physical residency.

The father and mother are parents to two children- one born in 2013 and the other born in 2016. They met in high school when they both lived in Southwick, Massachusetts. They lived for a time in Maine where the mother was enrolled in graduate school. Both of their children were born in Maine. The family celebrated Thanksgiving and Christmas in Southwick. They then moved to St. Louis followed by a move to Rochester, New York.

The experienced marital problems and both started relationships with other people. After living in Rochester for about two years, the father took the children to Southwick without the mother’s knowledge or consent.

The parties filed petition to establish custody with both seeking sole custody and primary physical residency.  The mother planned to remain in Rochester with the kids and the father planned to live in Southwick with the kids.  Note that this case is not a case about modify a custody order or violating a custody order. This case is about establishing custody.

In determining what was in the best interests of the children, the court reviewed the parenting skills of the parties as well as the environment where the children would live.  In considering the parenting skills of the parties, the court found that both were good parents and neither had deficits in their parenting skills and that it was in the best interests of the children to have significant time with both parents. The court decided that the children should spend time in both Rochester and Southwick, but their primary residency would be in Rochester with the mother.

While the children did live for a substantial time in Rochester, they have never lived in Southwick. Also, their school, doctor, dentist, and therapists were in Rochester. On the other hand, the father did not produce evidence that the lives of the children would be enhanced economically, emotionally or educationally by uprooting them and moving them to Southwick.

The court ordered that during the school year the children would live with the mother in Rochester and during the summer would have temporary residency with the father in Southwick.  The children would also live with the father during half of their winter break and spring break. The order included a provision the either parents from permanently removing the children from their respective counties without the permission of the other parent.

This is an example of the court allowing both parents as much parenting time as possible given the distance between the parents’ homes and the children’s school schedules.

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