The parties were divorced in 2004. The parties had joint legal custody of their children with the mother having physical custody and the father having certain rights of parenting time. A New York Family Lawyer said at the time of the divorce, the parties were living in Albany, New York, having relocated together from Long Island. Immediately after the divorce was finalized, the parties continued to live together for financial reasons but eventually moved into separate apartments in Albany with the children living with the mother. The father exercised his parenting rights during this time, though the extent to which he did so is in dispute.
Sometime after, the mother met her current husband, a resident of South Carolina, in an online chat room and began a long distance relationship which resulted in one of them traveling once every few months to see the other. At other times they would both travel and meet somewhere in the middle. In 2005, the mother had a hysterectomy which she blamed for causing her to lose her job. A Nassau County Family Lawyer said the loss of her job and the father’s alleged failure to provide regular child support placed her in dire financial straits which she believed could only be remedied by relocating to South Carolina where, aside from her current husband, her mother and sister resided.
The mother informed the father on a number of occasions of her desire to relocate. The first time this occurred, the father’s lawyer sent the mother a letter informing her that the father opposed her request to move. On the last occasion, the mother claims the father failed to respond except to say he would think about it, and when she heard nothing further, she believed herself free to relocate. In December 2005, she relocated to Greenville, South Carolina and moved in, briefly, with her mother. A Nassau County Child Support Lawyer said the current husband who is a nurse had flown to New York to care for the mother while she recovered from the hysterectomy and to assist in the move.
On 21 November 2005, prior to the move, the father filed petitions pursuant to Article 6 of the Family Court Act (FCA) in Albany County Family Court seeking custody or, in the alternative, to restrain the mother from relocating with the children.
The mother claims she was not aware of any such petition but after being informed by the father that the Court would be involved, she claims she called the Court but was not informed of any pending court date. In actuality, the Albany court had a return date of 23 December 2005 and when the mother failed to appear, the Court granted the father an order of temporary custody.
Thereafter, the father misled the mother into thinking he was coming to South Carolina to visit the children. Instead, he showed up at the mother’s sister’s home, during a barbecue, with his mother, the police and some sheriffs and retrieved the children. The father then took the children and his mother to Westbury, Long Island where the four of them began living in an apartment they continue to live to date.
After returning to Albany for a court appearance, the mother claims to have found a summons at her prior residence alongside the railing of a rarely used door. Thereafter, the father’s petitions were transferred to Nassau County.
On 29 March 2006, the Court held that the father should continue to have temporary custody of the children while the custody case was pending.
The Court ordered a forensic evaluation which was completed in two parts by separate therapists as a result of scheduling and traveling difficulties of the mother and her current husband. The Court also directed the Nassau County Probation Department to perform an Investigation and Report (I & R) which was completed on 12 April 2007. The parties and lawyers cooperated with one another during the trial to the extent that many witnesses were taken out of turn to accommodate the schedules of the forensic evaluators, school personnel and probation officer. As a result, the testimony of the parties and some other witnesses were frequently interrupted.
An issue of relocation is considered depending upon the facts of a particular case and what is in the best interests of the children. In determining whether to allow a relocation, the Court must consider a number of factors including, but not limited to, the reasons in favor of and against the relocation, the quality of the relationships between the children and the custodial and non-custodial parents, the impact the move would have on the relationship and future contacts with the non-custodial parent, the extent to which the children’s and custodial parent’s financial, emotional and educational needs will be enhanced by the move, and the feasibility of preserving a relationship between the children and the non-custodial parent should the move be allowed. The Court must determine, based upon these and other factors, whether it has been established by a preponderance of the evidence that the relocation would be in the children’s best interests.
Here, the reasons given by the mother in favor of the relocation were largely financial. She testified, at length, that a number of factors led her to relocate. These factors included losing her job, not getting child support from the father and being refused unemployment and public assistance. But no evidence was offered as to why she would have better luck finding employment in South Carolina. Indeed, she did not have a job waiting for her in South Carolina at the time of her move. On the other hand, she did have family support in South Carolina, where her mother and sister both reside. While it was never clearly spelled out, and none of her family members, aside from her current husband, testified in the trial, she testified that these family members were available for financial and emotional support for her and the children.
The two aspects of the aforesaid factor seem to cancel each other out, thus, this factor does not assist the Court in its analysis. Similarly, the consideration of the effect upon the children’s relationship with the non-custodial parent should the move be allowed is not helpful either. The father has indicated that if the mother is awarded custody, he will likely relocate to be nearer to them. On the other hand, the mother has already established a significant and meaningful long distance relationship with the children which would only likely be enhanced with greater parenting periods if the father is awarded custody.
As a result, the Court does not believe that allowing or disallowing the relocation would affect the current relationships with either parent, substantially.
There was some testimony that the mother’s financial and emotional needs would be met by the move and those needs would largely be met by her current husband. Throughout the proceedings, the mother has had problems keeping a job (though she blames frequent trips to New York for litigation as the reason) and left New York due to financial straits. While the Court was very impressed with the current husband, the Court must remain cognizant of the fact that he has no obligation to support the children, while the mother has testified to having trouble doing so in the past.
One issue of paramount importance is the stability of the two children, something they have not had much of in their young lives. Stability is presumed to be in the children’s best interests.
In the case at bar, the current stability in the children’s lives has been a product of prolonged court proceedings, which have been ongoing for over two and one-half years, allowing them to remain in their current school district. Each parent called as witnesses a number of teachers and school personnel in an attempt to persuade the Court that each parent was more involved, or better involved, with the school than the other. Through those witnesses, it became clear that the schools themselves were providing a great deal of stability to the children. The Court needed to be presented with some impressive credentials of South Carolina schools to consider moving these children from their current school, but that never occurred. The mother’s testimony was too brief on the issue of the South Carolina schools and what they could offer these children. The Court does not believe that the children’s educational needs would be enhanced by the move. Further, the children’s emotional needs are currently being met through the network of school psychologists and private mental health professionals currently in their lives. With the proper prodding from the school they are in, the mother and the mental health professionals, the father manages to stay on top of these needs.
Therefore, the Court finds that the mother has failed to prove, by a preponderance of the evidence, that the Court should allow the children to relocate.
Nonetheless, there are other best interest factors to consider. As is common in most custody cases, the bulk of the testimony in the instant case concerned one parent pointing out the deficiencies of the other parent. The court finds that each parent herein is certainly guilty of problematic behavior.
On another note, though each child expressed a preference for a different parent, the Court never considered splitting the children and does not believe it would be in their best interests to do so. Their wishes are one factor to be considered, but are not determinative. The Court must weigh the age and maturity level of the children when considering their wishes. The Court finds that neither child is old or matured enough for his or her wishes to be afforded great weight.
Absent the relocation, the Court would have granted sole custody to the mother, as she seemed to have a much better grasp of the children’s medical and educational needs. The Court found that the father lacked basic knowledge of his children’s education and medical needs and history prior to and including the latest move to Long Island. The Court found this distressing. Also, for an extended period of time, one of the children was not doing her homework. Such does not foster educational success. However, with the mother living in South Carolina, the Court does not believe it can grant such.
Consequently, should the mother return to the State of New York, within a thirty mile radius of the father’s current residence and preferably in the same school district, by 1 January 2009, the mother shall be granted sole physical and legal custody of the children. Until that time, the current status of the father having residential custody and parties sharing joint legal custody shall remain in effect and the father is ordered to adhere to joint legal custody in its entirety.
The mother shall notify the father, in writing, by 1 November 2008, of her intent to move back to New York and assume custody of the children. This is to secure a smooth transition back to the mother. The Court believes that the mother’s proactive approach to dealing with the children’s difficulties must be given more weight. The children need an advocate to be on top of their ever-changing educational and mental health needs, and the mother is much more adept at doing so. The father needs to be prodded to do the minimum in this regard.
The Court’s reasoning is the same regardless of the fact that the children’s attorney strongly favored the father. The Court’s priority is to give the children the benefit of and attempt to accentuate the dominant parenting skills of each parent and not to punish the mother for her relocation or favor the father because he is more agreeable.
Henceforth, the mother is granted residential and sole legal custody of the children only if she moves back to New York; otherwise, the father shall have residential custody of the children and the parties shall share joint legal custody; certain parenting time or visitation is also set forth in each case.
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