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Father Seeks to Restrain Mother from Relocating Children


A New York Family Lawyer said in the matter before the Court concerns child custody of two children. The children are the biological children of the divorced parties herein. The current proceedings were commenced when the father filed petitions pursuant to Article 6 of the Family Court Act (FCA) in Albany County Family Court seeking child custody or, in the alternative, to restrain the mother from relocating with the children. After the mother relocated with the children to South Carolina, The Albany County Family Court issued an order granting the father temporary child custody of the children. The father went to South Carolina to obtain physical child custody of the children and then immediately relocated to Nassau County, New York. The Albany Family Court matter was thereafter transferred to this Court. The mother also filed her own petitions seeking child custody.

A New York Divorce Lawyer said that pursuant to a stipulation and Judgment of Divorce, the parties were divorced in 2004. As per the terms of their stipulation, the parties had joint legal child custody of the children with the mother having physical child custody and the father having certain rights of parenting time. At the time of the divorce, the parties were living in the Albany, New York area, 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 the Albany area, with the children living with the mother.

A New York City Family Lawyer said the father exercised his parenting rights during this time, though the extent to which he did so is in dispute. 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. At some point during 2005 the mother had a hysterectomy which she blamed for causing her to lose her job. 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 a relocation to South Carolina where, aside from the new husband, her mother and sister resided.

A Manhattan Family Lawyer said 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 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. 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 and when the mother failed to appear, the Court granted the father an order of temporary child custody. The father then misled the mother into thinking he was coming to South Carolina to visit the children, and instead showed up to 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 in today.

After returning to the Albany area 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. Thus, the Court held a hearing and determined the father should continue to have temporary child custody of the children while the child custody case was pending.

This Court ordered a forensic evaluation, which was completed in two parts by separate therapists as a result of scheduling and traveling difficulties of the couple. The Court also directed the Nassau County Probation Department to perform an Investigation and Report (I & R). 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.

The subject children were interviewed in camera on two occasions. The children were much more expressive in the first in camera than in the second one. The Court does not believe either parent imposed any pressure or coached the children for either interview. The children each want to live with a different parent, though they love both of their parents, and each other, very much. The Court never considered splitting them up, despite their wishes.

This case is one of many ironies. The first being that these two parents seem to be perfect foils for one another, in terms of parenting. While the father is only reactive in considering his children’s needs, the mother is aggressively proactive which has benefitted the children greatly. On the other hand, while The mother may be prone to overreacting and use harsh tactics when she reacts without reflecting first, The father has a more laid back and patient demeanor which may suit these two special-needs children better. There are number of other examples like this where these two parents seem to be fitted puzzle pieces when it comes to parenting these two children.

While it is different from most in that child custody was actually changed to the non-relocating parent prior to the fact finding but after a hearing, the analysis is the same. The issue of relocation is to be considered depending upon the facts of the 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 feasability 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.

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, The mother did have family support in South Carolina, where her mother and sister both reside. While it was never clearly spelled out, and none of The mother’s family members testified in this trial, The mother testified these family members were available for financial and emotional support for the her and the children.

The two aspects of this factor seem to cancel each other out herein and 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 child 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 child custody.

Accordingly, the Court does not believe 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 the second husband throughout these proceedings, the mother has had problems keeping a job and left New York due to financial straits. While the Court was very impressed with the second 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 to this Court in this case is the stability of these two children, something they have not had much of in their young lives. Stability is presumed to be in the children’s best interests.

The current stability in the children’s lives has been a product of these 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 in this case 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 these children.

That the paternal grandmother could tell the mother that an issue regarding her children is “none of her business” is an example of unparalleled gall and not the first instance of such. This discussion about the parents’ behavior is relevant because this Court must also weigh, among all the other factors, which one of the parents is more likely to promote a positive relationship with the other parent. To do so, a parent must place the children’s needs before his or her own.

However, even when taking such into account, it seems that The father is willing to work at it, if only to keep child custody of the children. The Court would prefer if his motivation was to become a better parent, but, in the end, as long as he works at it the children will benefit. The Court has also viewed the evidence in this case from the perspective of a modification petition, since both parents are, essentially, seeking a modification of the divorce decree. “The hearing court may order a change in child custody if the totality of the circumstances warrants a modification in the best interests of the child”. In this case, the totality of the circumstances includes the mother’s unauthorized relocation, her refusal to put the children’s needs ahead of her own, the children’s stability as well as their emotional and educational needs.

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 in this case is old enough, nor mature enough, for his or her wishes to be afforded great weight. Absent the relocation, the Court would have granted sole child custody to the mother, as she seemed to have a much better grasp of the children’s medical and educational needs. The Court found 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.

Should either parent travel with the children outside the state of their residence, two weeks prior to such, they must provide the other parent with the address of where he or she will be staying with the children and phone numbers to be used only in the case of emergency. Each parent may travel internationally with the children, but the traveling parent must give a minimum of one month notice to the other, in writing, of any such travel. There shall be any other parenting time as is agreed upon by the parties. The decision in this case deviates, depending upon the circumstances, from the recommendations of the forensic evaluator and the children’s attorney. Where there is a forensic evaluation and a recommendation by a child’s attorney, the recommendations contained therein are not determinative, but are to be afforded some weight. The reason for the potential deviation from the forensic evaluator’s recommendation involves different priorities, as well as the credibility and demeanor of witnesses during the hearing.

As the children’s attorney also strongly favored the father, the Court’s reasoning is the same.

The Court’s priority is to give the children the benefit of and attempt to accentuate the dominant parenting skills of each parent, not to punish the mother for her relocation or favor the father because he is more agreeable.

Therefore, based on the foregoing, it is ordered that The mother shall have residential and sole legal child custody of the children if she moves back to New York, within a thirty mile radius of the father’s current residence, and it is further ordered that if the mother does not relocate to New York, The father shall have residential child custody of the children and the parties shall share joint legal child custody, as described in this decision; and it is ordered that parenting time shall occur as described in this decision.

In every case involving a child of parents-litigants in a case, the court must take into consideration the welfare of the subject child since he should not suffer the consequences of the case of his parents. Here in Stephen Bilkis and Associates, through our Nassau County Family lawyers, we determine each and every action we make in case there is a child affected in a spousal action. We make it a point that, a sufficient amount of support is given to the child for his nourishment and sustenance. Our Nassau County Child Support lawyers files the necessary pleadings for the benefit of the subject child. Write or call us now, we are always ready to listen and help you with your predicaments.

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