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Court Rules on Custody Battle


Sometime in January 2004, the parties in the herein case got married. On 13 July 2006, about a year and a half later, the parties were separated and got divorced. They are the parents of a now six-year-old boy born on 17 May 2004. The stipulation settling the divorce case granted the mother legal and physical custody of the child. The father had visitation every week from Monday at 8:00 p.m. until Wednesday at 6:00 p.m. The stipulation allowed relocation within 25-miles of the father’s house in the Bronx.

A New York Family Lawyer said the father has had a history of irregular employment and is currently not employed. While at the time of trial, the mother, who is remarried, cared for her younger child from her second marriage, full time.

After the parties separated, the mother remained in the marital apartment in the Bronx with the child for two years. In the fall of 2007, she began working as a project administrator in the construction field. In 2007, she moved with the child and her boyfriend to Connecticut. The mother testified that she always wanted her son to be in a suburban environment. However, the relationship in Connecticut ended when the boyfriend returned to his native country, New Zealand. Hence, the mother then returned to New York with the child and moved into an apartment in Harlem.

In March 2008, the mother met her future husband on the internet. The future husband was retired from the Air Force, lived in North Carolina and was then involved in a nation-wide job search. Ultimately, the future husband took a job with Northrop Grumman in San Diego. He had requested to work at Northrop Grumman’s Long Island branch, but the company could not accommodate his request. The mother and the future husband became engaged in May of 2008.

Soon after the engagement, the mother approached the father about moving to California to live with her future husband. A New York Criminal Lawyer said the father was concerned about the distance and the stability of the mother’s new relationship. The parties therefore met with a mediator to try to work out an arrangement by which the mother could leave the child with the father temporarily while she settled in California. The mediator sent a letter, dated 12 May 2008, that purported to memorialize the parties’ agreement. The letter stated that the parties agreed that the child would stay with the father from 27 June 2008 until 31 December 2008, with the mother making several long weekend visits to New York. Mother and son were also to participate in a webcam phone call two to three times a week. The letter did not address where the child would live after 31 December 2008. However, the father refused to sign an agreement embodying these terms and instead asked the mother to sign over custody to him. She refused. The mother left for California on 26 June 2008. She claims that she never intended the father to have permanent custody, but arrangements to move to California had become irreversible by the time she learned that the father did not agree.

On 17 July 2008, the father filed a petition seeking sole legal and physical custody of the parties’ child, claiming that the mother had abandoned the child, according to a Nassau County Family Lawyer.

On 1 December 2008, the mother filed a petition for relocation. The court consolidated the two petitions. Before the hearing, the father withdrew his petition for sole custody. Accordingly, the court considered only the relocation application.

Meanwhile, the mother and the retired Air Force got married in April of 2009. The mother gave birth to a son on 4 April 2009.

Should the mother’s relocation petition be granted?

The courts have held that each relocation request must be considered on its own merits with due consideration of all relevant facts and circumstances and with the predominant emphasis being placed on what outcome is most likely to serve the best interests of the child. Among the factors the court must consider are: (1) “each parent’s reasons for seeking or opposing the move,” (2) the quality of the child’s relationship with each parent, (3) the impact of the move on the child’s future contact with the noncustodial parent, (4) the degree to which the move may enhance the custodial parents’ and child’s life economically, emotionally and educationally, and (5) “the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements.

Here, the case makes abundantly clear that it is the rights and needs of the children that must be accorded the greatest weight.

There is no question that the California home is financially more stable than the father’s home. The stepfather has a steady job that provides his family with health insurance. By contrast, the father is not currently working. Although he has been offered a job as a teacher’s aide, he has postponed his start date. He is currently on some type of public assistance and receives money from his parents in Ireland. He readily admits that “it’s not been easy like money wise.” He is not currently in a relationship. Given his bleak financial circumstances with no career or family in New York, it would appear that there is nothing keeping the father from moving to San Diego himself to be closer to his son.

Moreover, living in San Diego ensures that the child will grow up in the same house as his half-brother. The father agreed that it was very important for the child to have a brother in his life. He even testified that he actually expected the child eventually to move to California so that he could be with his brother; the father was merely opposed to the date of the move. The mother established that the child would have access to an education that was just as good as, if not better than, his school in New York. Moreover, a Queens Family Lawyer said she testified that the stepfather’s status as a veteran will allow the child to attend college within the State of California’s university system free of charge.

In addition, the record also reflects that the mother went out of her way to facilitate communication between the child and his father. The same could not be said of the father with respect to communication between the child and his mother.

Lastly, the child’s own attorney recommended that the court permit the mother to relocate with the child, a factor that militates in favor of affirming the result the court reached.

On the argument that the mother is putting her own romantic interests ahead of her son’s welfare is rank speculation. It is just as likely that the mother, herself as an only child, was pursuing marriage aggressively to produce a sibling for her son before he became much older and an intact family. Regardless of the mother’s motivations, it is the best interest of the child that must guide the court’s decision. Relocation ensures that the child will live in a family that is stable financially. He will be with his brother. Although the amount of time spent with his father will diminish; however, the court finds that the visitation schedule requiring the mother to pay for air travel for the child to be with the father on numerous extended weekend visits throughout the year, in addition to extended summer and holiday visits, does not deprive the father of the opportunity to maintain a close relationship with his son.

Accordingly, the court grants the mother’s petition to permit her to relocate to California with the parties’ child.

A child’s custody, more often than not, is the hardest issue a court must resolve in every divorce case. If you are knotted in a situation similar to the above mentioned case, please do contact Stephen Bilkis & Associates for a free consult. Seek legal advice from our experts, viz: New York Divorce Lawyers, New York Child Custody Lawyers, New York Family Lawyers, etc.

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