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Court Decides Custody Battle When Mother Remarries


A New York Family Lawyer said the parties, in this matter, shared custody of their children. Physical custody was awarded to the mother, subject to the father’s right to visitation as set forth in their separation agreement which was incorporated but did not merge with the judgment of their divorce. The separation agreement provided that the father would have mid-week overnight visitation with the children.

Almost one year after, a New York Custody Lawyer said the mother married another man. After the marriage the mother, her new husband, her children, and eventually the two children from the second union lived together in a house owned by the man’s parents. An increase in property taxes led the man’s parents to decide to sell the house. The man’s parents offered to assist with housing expenses if the man and the mother decided to relocate to the Albany area.

From then on, and as a result of the said conversation with his parents, the man began to search for a new job, in an effort to effectuate the said relocation. Afterward, the man was offered a job with a waste and recycling company in the Albany area. Even if it is the mother’s contention that she discussed the possibility of relocation with her former husband, there is some argument as to whether the father of the children initially voiced any objection.

Subsequently, the man accepted the position and the house were placed on the market. The house was sold and the man’s parents purchased a home for their son and his family.

A Nassau County Family Lawyer said the mother then filed an application with the court for modification of the visitation provisions of the judgment of divorce. The petition requested that the father’s mid-week visitation be eliminated. The mother stated that it was not practical because her new husband had secured employment in the Albany area. The petition stated that she and her four children would relocate to the Albany area to join her husband at the end of the school year.

A Nassau County Child Custody Lawyer said the court ordered that the parties submit to an investigation and report with the county’s probation department. The court also ordered that the forensic evaluator will prepare a report. A woman was also appointed as law guardian for the children.

A forensic evaluator testified that based on the strong relationship that the children enjoyed with both parents and the distress they displayed over the possible inability to maintain that relationship, she initially recommended that the mother should remain in the county area with the children. In the event that the mother refused to remain in the area, she suggested that the court should consider granting custody to the children’s father. The evaluator’s recommendation was based in part on her perception that while the mother understood the quality of the relationship between the children and their father, the mother placed her own interest in relocating ahead of that relationship regardless of the impact on the children. The mother made very clear to the evaluator that she intended to relocate with or without her children. The evaluator was also concerned that in the event the mother was permitted to relocate with the children, the mother would not continue to permit the children’s father to have significant access to the children absent a clear and specific visitation schedule.

In her subsequent report, the evaluator found that the children appeared to be suffering from greater amounts of conflict and in need of a resolution to the conflict. At the same time, the children’s father’s involvement with the children appeared to be diminishing. The father missed several school events, and the children were upset that their father was sending his wife to pick the children up for visitation because of his work obligations.

Sources revealed that based on the need to resolve the anxiety experienced by the children and the father’s diminished involvement with the children, the evaluator recommended that the mother be permitted to relocate with the children and that the father be given an extensive and structured visitation arrangement.

During the course of the hearing and at the court’s request, the evaluator interviewed the children. After doing so, she reported that the girl was very ambivalent about relocating and indicated that she would like the court to grant custody to her father. Likewise, the boy was extraordinarily adamant that he wished to remain with his father. Both children expressed displeasure with their mother for curtailing their contact with their father since her relocation.

The court also considered the recommendation of the children’s law guardian. The guardian stated that she questioned the feasibility of the father’s ability to maintain a meaningful relationship with the children, in the event the mother was permitted to relocate. She relayed that the father had maintained regular contact with the children, participated in the children’s school activities, and made every effort to be a part of their lives. The law guardian’s conclusion was that the mother’s application should be denied. She also stated that her position was that the relocation would not be in the best interests of her clients.

The court has also considered reports of an investigation by the family division. The reported favorable home study for both the mother’s new home and the father’s new home. Without access to the forensic investigation reports, no formal recommendation was made. It was conditionally recommended, however, that strong consideration be given to awarding custody of the children to the father. It was advised because the mother would not consider obtaining housing within county.

Subsequently, the mother seeks modification of the parties’ judgment of divorce and separation agreement, which was incorporated by reference.

The court has duly considered and examined the testimony of the various witnesses. The court also based its decision on the in-camera with the children and the recommendation of the law guardian.

Based on records, each relocation case must be decided on its own merits. Further, the greatest weight must be afforded to the best interests of the children. The factors set forth in previous court case have been weighed against the evidence put forth by the mother.

As a result, in applying the principles in accordance with the decision rendered from the bench after hearing, and after having thoroughly considered and reviewed all relevant factors, the court found that the mother has failed to meet her burden of proof, by a prevalence of the credible evidence, that relocation would serve the best interests of her 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.

For that reasons, the custody and visitation provisions of the parties’ judgment of divorce and separation agreement are ordered modified. The court also ordered that the parties shall continue to share joint legal custody but the physical custody is transferred to the father. The mother shall have visitation with the children on the first and third weekends of every month. The mother shall exercise one of the weekends in county, and may exercise the other in her place. 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 father shall now belong to the mother.

It is hard for any parent to live far from their children. If you are dealing with the same issue and you need a legal expert for you to obtain your child’s sole guardianship, you can ask assistance from Nassau County Custody Attorney or Nassau County Child Custody Lawyer. You can also have the help of Nassau County Family Lawyer at Stephen Bilkis and Associates office.

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