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Court Decides Custody in Relocation Case


This Family action concerns custody of two children, ages 13 and 11. The current proceedings were commenced when the father filed a petition pursuant to Article 6 of the Family Court Act seeking a modification of an Order of Custody of the children after the mother relocated beyond the radius clause in their divorce stipulation. The mother subsequently filed her own petition.

A New York Family lawyer said that pursuant to a contented-to stipulation and the Judgment of Divorce the parties were divorced in 1998. As per the terms of their stipulation, the mother had sole custody of the two children and the father had certain rights of child visitation. One provision of their stipulation was that the mother could not relocate outside of a fifty (50) mile radius with the children. Each party became involved with other long-term partners and each has had other children. The mother and her paramour, have been together approximately nine years and have two children out of wedlock. The father is remarried and together they have one child. Each family unit lived in various areas of Queens and Long Island over the years until the mother moved, with her paramour, the subject children and her other two children to Pennsylvania. It is this move that has spurred the current litigation.

A New York Custody Lawyer said that in September 2006 the father filed a petition for custody of the two subject children. Despite being properly served with the custody petition, the mother did not appear in Court for over three court appearances. On the fourth court appearance, the mother did appear in Court that morning, but then did not return to Court that afternoon, despite being told to do so by the Hon. Judge’s court attorney. The mother claims her legal aid attorney informed her she could go home. As a result of her failure to return to Court on the afternoon one day, and the inability of the Court to reach her by telephone, the Judge transferred custody of the subject children to the father. The father made arrangements for that order to be enforced in Pennsylvania, and on the next day, he obtained physical custody of the children in Pennsylvania and brought them to his home in New York. They have lived with him since that time.

If not for the children’s stated desire to return to their mother, the Court’s decision in this matter would be simple and clear. Custody to the father and parenting time to the mother. A Suffollk County Family Lawyer said the Court believes the mother and her paramour have undermined the father’s relationship with the children and sees no reason why that would stop should she be the custodial parent. The father, on the other hand, seems to put the children’s best interests first and was willing to give up custody for that reason. He would foster an ongoing relationship between the mother and the girls.

In essence, this is a relocation case. While it is different from most in that custody was actually changed to the non-relocating parent prior to the trial, 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.

Regarding the financial, emotional and educational benefits of the move, the mother failed to present even a scintilla of evidence, outside her own self serving statements, in support of the notion that her new community was in any way superior to that which she left behind in New York. A Suffolk County Custody Lawyer said to the contrary, the testimony all indicated the children have always been excellent students and that they thrived in their schools in New York and Pennsylvania. Aside from the one program, the Court learned nothing else about the Pennsylvania school which would distinguish it from the school the children attended prior to moving, or that they now attend in a school on Long Island.

In a case, the Court discussed the importance of stability in children’s lives. One of the holdings of that case was that maintenance of the status quo in children’s lives, while not determinative, is a factor to be considered in custody matters. Unfortunately for these children, the status quo has been the constant changing of their living arrangements and schools. The Court believes the father would return stability of home and education to the children’s lives.

Further, there was no evidence supporting the allegations that, for financial reasons, the mother was unable to afford to live in New York. The mother and her paramour testified that the father is the children’s sole support in Pennsylvania. However, he was vague about his income and employment and provided no support for that about which he testified. (“Although the father testified that his relocation plans were motivated by employment and financial considerations, he introduced no financial documentation or evidence regarding his existing employment or financial status to support finding a financial need to relocate and merely asserted that he had unspecified construction work

It is the Court’s opinion, and other factors except the wishes of the children, that the father should be awarded custody. It is undisputed that the children wish to live with their mother. They love her and miss their siblings. The children’s wishes are one factor to be considered by the Court, but are not determinative. In considering the children’s wishes, the Court must take into account the children’s ages, level of maturity and the extent to which they may have been pressured or influenced in regard to their choice. “The desires of young children, capable of distortive manipulation by a bitter, or perhaps even well-meaning, parent, do not always reflect the long-term best interest of the children”.

At the time of the second in camera interview, the children were 13 and 10 years old. They are extremely bright and express themselves easily. The Court found their level of maturity to be beyond their years, and the testimony in the case supports this. They have strong opinions and have no problem expressing them, even if it means criticizing their stepmother’s parenting skills, cooking or dress. However, it is clear to the Court that at some point they were pressured by the mother and father. This is clear from the testimony of the parties. The Court cannot say for certain whether Ms. S. put direct pressure on the girls to say and do particular things, but it does seem clear that Ms. S. expressed to the children how upset she is without them. The Court does believe Ms. S. has expressed to the children how hurt she is that the children are now living with their father and how much she and Mr. T. miss them. The result of this could likely be the children feeling responsible for, and guilty about, their mother’s unhappiness. At least this is what the Court believes happened. The children’s expressed desire for their home, school and friends in Pennsylvania, a place where they lived less than five months, seemed couched in adult terms. The Court finds it strange that the same wishes, worded the same way, were expressed by the children in near identical terms in both in camera interviews, despite the fact they were done seven months apart.The same could be said for their criticisms of their stepmother. In the end, the Court found it strange that the children were so strongly attached to the home, school and friends in Pennsylvania when it was hours away, and essentially isolated, from the friends and family they had been surrounded by for their entire lives. For all these reasons the Court finds their stated desire to live with the mother was, at least in part, the result of pressure put on them by the mother and Mr. T.

Accordingly, the Court finds that it would be in the children’s best interests for their father to have sole custody of them. The father shall consult with the mother on all major decisions regarding health, education and general welfare. The parents should work together to reach consensus on these decisions, however if they cannot, the father shall have final decision-making power.

After divorce decree was issued, the parent having no custody of their children should be given a right to visitation. Here in Stephen Bilkis and Associates, we will help these parents who are longing for their child. Through our New York Child Visitation attorneys, we will make it a point that a proper order will be issued by Courts. For more inquiries, contact our New York Family lawyers now.

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