The May 5, 2011 decision of the Appellate Division Third Department in Munson v. Fanning, highlights the need for difficult discussions and prioritization before taking life-altering steps. It is also another call for the expanded use of the Collaborative Law Process.
In this case, the parties’ 12-year old daughter had been born after her parents had separated and divorced. The mother sought and permission to move with the child to California to join her new husband who had taken a new job. Saratoga Family Court Judge Courtenay W. Hall denied that relief, but revised the father’s visitation schedule to allow the mother to join her husband for extended periods during school recesses.
The appellate court reviewed whether the mother met her burden of proving by a preponderance of the credible evidence that the relocation was in the child’s best interests. Quoting the 1996 landmark decision of the Court of Appeals in Tropea v. Tropea, 87 N.Y.2d 727, 642 N.Y.S.2d 575, the court stated:
The factors to be considered in making such a determination include “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.”
The court recognized the healthy relationship the daughter developed the mother’s new husband, as well as her other children, all of whom were to reside in California. The step-father’s new job in California would allow her to stay at home and raise her children. The attorney for the daughter (formerly called the Law Guardian) supported the relocation.
However, the father had developed a strong relationship with the child and made every effort to become an important part of her life. The proposed move would have had a significant and potentially adverse impact on that relationship and seriously jeopardize it. Moreover, the move would also affect the child’s relationship with the father’s fiancée, their children, as well as other members of her extended family who live in the area. The Third Department upheld Judge Hall’s denial of permission to relocate.
The appellate court recognized that the Family Court had the authority in to find that her husband’s employment situation in California constituted a significant change in circumstance which, in turn, required a modification of the existing visitation schedule to meet the child’s best interests. However, that modification required a more substantial record, and the case was remanded for further consideration of the visitation modification.
One cannot help but feel that some of the relationships the appellate court considered will now, by virtue of the litigation itself, be significantly damaged, if not doomed. Can the mother’s new marriage survive? Will an environment of bitterness and resentment hang over the daughter, dooming her own future relationships?
To perhaps give some idea of the current feelings of the parties for each other, in this case the mother also sought to have her ex-husband held in contempt for smoking in the child’s presence in violation of a court order. Judge Hall denied that relief as well. The Third Department agreed. The father’s single instance of smoking in the car with the daughter, and smoking in a separate area of his home not knowing that such was prohibited by the order, did not warrant a finding of contempt.
Both parents clearly care for their child. The litigation is a tragedy.
Who, then, is entitled to the highest priority? When the step-father signed on, did he give up the right to pursue his career without limits? If not, should mom have agreed to her new husband’s desire to move? What other arrangements could have made to promote the health and welfare of the only innocent: the daughter?
By going to court, the battle was probably already lost . . . by everyone.
A recommendation: The interdisciplinary model of the Collaborative Law Process brings together lawyers, mental health professionals and financial experts specially trained to efficiently resolve family conflicts by crafting the best available, if not unique solutions which promote the interests of all effected.
If the daughter was the highest priority, perhaps she was entitled to have her parents work things out.