On a motion for a change of child custody by a father whose former wife has breached the restrictive residence provision of a non-merged separation agreement by surreptitiously removing the children of the marriage to California, two equally strong policies are contra posed to each other. A New York Family Lawyer said the policy of courts to jealously protect the visitation rights of a non-custodial parent, and on the other, the policy of deferring jurisdiction of custody disputes to that jurisdiction best able to hear all relevant evidence concerning the children’s past, present and future circumstances.
The court determines that it is in the children’s best interests that the matter be heard in California, where nearly all the relevant evidence can be found. The case involves neither child snatching nor forum shopping. Moreover, the papers before the court strongly suggest that the father is not, at present, a fit custodian of the children whereas the mother has made a strong showing that the children’s welfare has substantially improved in California. A Nassau County Family Lawyer said that since the court is confident that the California courts will be sensitive to the father’s visitation rights, the court declines to exercise its jurisdiction on the condition that appropriate proceedings should be promptly commenced in the California courts.
In a separation agreement dated June 22, 1982, the complainant mother and the father agreed that the mother would have the child custody and the father would have reasonable rights of visitation upon 48 hours notice. It was further agreed that the mother would not remove with the children more than 200 miles from New York without the father’s consent.
The Family Court of the State of New York restated as the stipulated settlement of a child custody petition initiated by the father. In addition, the father’s visitation was further refined as week day and weekend visitation on his days off up to a maximum of ten days per month. An order was entered incorporating the provisions.
On August 22, 1983, the court granted a conversion judgment of divorce to the mother on the default of the father, which judgment did not merge the separation agreement. A Nassau County Child Support Lawyer said the aforesaid judgment retained jurisdiction in the court to specifically enforce the provisions of the separation agreement capable of specific performance.
By order to show cause, the father brought on the application to vacate the provisions of the judgment of divorce concerning child custody and visitation and for an order granting him custody of the four children of the marriage. The basis of the application is his contention that without his knowledge or consent, the mother removed the children to California where they presently reside. The father states in his affidavit that he only recently was able to ascertain the whereabouts of the mother and the children.
In opposition to the motion, the mother states that the father unequivocally agreed to her moving to California. She further states that during the marriage the father, who is a police officer, frequently threatened herself and the children with physical violence, and that after the separation of the parties the father visited the children only infrequently. In addition, the mother states that in California she is sharing a home with her two brothers, who are very attentive to the children, and that the defendant’s parents live in the same town and see the children at least five times per week.
In support of her position, the mother submits affidavits executed by the father’s father and step-mother. It states that in the past, the father showed little interest in his children and that when he did see them he acted very inappropriately such as telling his ten and eleven year old daughters that their mother slept with all the niggers in town. The father’s step-mother relates another incident in which the father allegedly visited his son’s communion and just walked in and told everyone he was the father, and they better all move over because he had a gun and would blow up the whole place if they did not.
The father’s parents state the mother is giving the children a good Christian education in California, that the children are involved in sports and other activities and are doing exceptionally well in school whereas in New York (where the grandparents previously resided) the children were nervous, withdrawn and so unhappy. The father’s step-mother concludes her affidavit by stating that she feel their mother took them to California to stabilize them and to give them a happier and healthier home life. The father’s father states in his affidavit that his son is presently having personal problems which he needs to deal with and in the meantime, the children are doing very well in California.
In his reply affidavit, the father does not controvert the episodes described in his step-mother’s affidavit, nor does he seek to put in context the letter quoted above except to state that he is extremely depressed and emotionally void as a result of his wife’s unilateral move to California.
Moreover, the father does not deny the mother’s charges that he frequently threatened the children, although he does deny that he physically abused the plaintiff and the children. In addition, he does not dispute that his visitation with the children since October, 1982 was as infrequent as the mother describes. While he does allege that he was repeatedly denied visitation, he offers no documentary proof to support his claim.
Most importantly, the father offers no affirmative evidence that he is a proper custodian of the children. To the contrary, his papers are solely directed at establishing that the mother moved to California without his permission. The father annexes to his reply affidavit two letters from the mother. The August 10 letter, which gives no return address, states that the children are enjoying their vacation. The two letters quoted above demonstrate, without question, that the father did not consent to the mother and removed the children to California for the purpose of residing therein. Rather, they show that the mother took the children to California in July, ostensibly for the purpose of a vacation and probably with the father’s permission. Thus, the mother’s decision to remain in California constitutes a clear violation of the non-merged separation agreement.
Nevertheless, no ground is shown to set aside the judgment of divorce. The father asserts that he was fraudulently induced not to oppose the entry of a divorce judgment on default by the misrepresentation that it would incorporate the restrictive residency covenants contained in the Family Court order. But the same restrictive covenants were contained in the separation agreement, which agreement was referred to in the divorce decree and which agreement survived the decree. Obviously, then, the failure to incorporate the Family Court order has caused the father no injury since the decree provided that the non-merged separation agreement can be specifically enforced. Consequently, father’s motion to vacate part or all of the judgment is denied.
Because the court finds that the pertinent evidence concerning the children’s present and future care, protection, training, and personal relationships is more readily available in California, and because of the weakness of the father’s claim to custody based upon his past record, his present situation and the children’s allegedly successful adaptation to California, the court determines that it is in the children’s best interests that the matter be litigated in California. Notwithstanding the fact that the children are presently residing there due to the wrongful act of their mother, this is a rare case where the policy of discouraging such misconduct is outweighed by the paramount concern–the children’s best interests.
The law aims to make sure that the best interest of the children are protected and maintained. In marital dispute sometimes the children’s welfare are taken aside. If you intend to win your child’s custody and you want to know how to settle your legal actions amicably for your child’s benefit, or have a child support concern, or need an order for protection, consult a NY Family Lawyer together with a New York Child Custody Attorney. The NY Divorce Attorneys hand in hand with the New York Order of Protection Lawyers from Stephen Bilkis and Associates can help you win your lawsuit.