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Petitioner Seeks to Modify Child Custody Due to Out of State Relocation


In a child custody proceeding pursuant to Family Court Act article 6, the mother appeals, as limited by her brief, from so much of an order of the Family Court, as, after a hearing, denied her cross petition to modify a prior custody order, by permitting her to relocate with the subject children to Maryland.

A New York Family lawyer said that the disposition of a petition for permission to relocate with minor children rests upon a determination of the best interests of the children. “Relocation may be allowed if the custodial parent demonstrates, by a preponderance of the evidence that the proposed move is in the child’s best interests”. When evaluating whether a proposed move will be in the child’s best interests, the factors to be considered “include, but are certainly not limited to each parent’s reasons for seeking or opposing the move, the quality of the relationships between the child and the custodial and noncustodial parents, the impact of the move on the quantity and quality of the child’s future contact with the noncustodial parent, the degree to which the custodial parent’s and child’s life may be enhanced economically, emotionally and educationally by the move, and the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements”

A New York Child Custody Lawyer said that although the hearing court has an advantage in being able to observe the demeanor and assess the credibility of witnesses, we would be seriously remiss if, simply in deference to the finding of the hearing court, we allowed a relocation determination to stand where it lacks a sound and substantial basis in the record. Moreover, in relocation determinations, our authority is as broad as that of the hearing court.

Here, a Nassau County Family Lawyer said that the mother established that the children’s best interests would be served by permitting the requested relocation. In seeking to relocate with the subject children from Brooklyn to Laurel, Maryland, the mother testified that she wanted to provide them with a “better life”. The mother stated that she wanted to move the children away from the gun violence and drug-dealing occurring in her Brooklyn neighborhood.

In Maryland, the mother rents a two-bedroom apartment in a complex that includes amenities such as a swimming pool, volleyball court, and soccer and barbeque areas. Her apartment is only a short distance from an elementary and middle school that her children can attend, and the middle school is equipped to handle the older child’s special needs. Currently, the older child is attending a school that requires him to travel up to four hours round trip.

A Nassau County Child Custody Lawyer said that the mother testified as to past instances where the father struck her and the older child, which the court credited. In addition, the position of the attorney for the children is that relocation is in the children’s best interests, which, since not contradicted by the record, is entitled to some weight. Although the mother’s relocation will inevitably have an impact upon the father’s ability to spend time with the children, a liberal visitation schedule, including extended visits during summer and school vacations, will allow for the continuation of a meaningful relationship between the father and the children.

Accordingly, the mother’s cross petition should be granted, and the matter remitted to the Family Court, Kings County, for further proceedings to establish a post-relocation visitation schedule.

In another child custody and visitation proceeding pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Kings County, which, in effect, granted the father’s motion to dismiss her petition to modify a prior order of visitation of the Family Court, Albany County, on the ground that the Family Court, Kings County, lacked jurisdiction.

The Supreme Court said that the Family Court, Kings County, erred by, in effect, granting the father’s motion to dismiss the petition upon the ground that it lacked jurisdiction.

Family Court Act § 171 provides that “[a] lawful order of the family court in any county may be enforced or modified in that county or in the family court in any other county in which the party affected by the order resides or is found.” Here, the mother and the parties’ son reside in Kings County, and the mother was a “party affected” by the prior order of visitation. Thus, the Family Court, Kings County, had jurisdiction to entertain the mother’s petition to modify the prior order of visitation issued by the Family Court, Albany County.

However, the father correctly asserted that this proceeding should be determined in Albany County, as the proceeding could have been originated there, and he demonstrated “good cause” for its transfer. The father resides in Albany County and the mother’s petition for modification was based upon incidents which allegedly occurred in Albany County.

Accordingly, the convenience of the parties and potential witnesses will be best served by the transfer of the proceeding to Albany County.

Here in Stephen Bilkis and Associates, our Kings County Family lawyers are always here to guide you and give you pieces of advice which will be beneficial for you. We make it a point that every advice made will be for your welfare. We also have Kings County Child Custody attorneys who will help a longing parent to have his child in his custody. Call us now.

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