One of the most difficult tasks facing family law judges is balancing the competing interests of each parent and the children in relocation cases. However, two recent Second Department decisions might indicate that a 50-mile rule is emerging.
In Katz v. Shomron, the Second Department on April 9, 2014, affirmed the order of Kings County Family Court Judge Michael L. Katz, which after a hearing granted the mother permission to relocate with the parties’ children from Brooklyn to Rockland or Westchester Counties. Without providing details, the appellate court agreed that the mother had established a change of circumstances and that the proposed relocation would serve the subject children’s best interests. The mother also established that the proposed move would not have a negative impact on the children’s relationship with the father.
We are told nothing more. However, the listing of counsel for the parties shows that the father resides in Belfast, Maine, and represented himself [there was no mention of how often he saw the children]. Gordon A. Burrows, of White Plains, N.Y., represented the mother. Karen P. Simmons, of the Children’s Law Center New York (Janet Neustaetter, of counsel), was attorney for the children.
In Caruso v. Cruz, the Second Department on February 13, 2014, reversed the order of Orange County Family Court Judge Lori Currier Woods, and granted the mother’s application to relocate with the children 57 miles from Orange County to New Rochelle.
The parties were the parents of 9-year-old twins and a 20-year-old son. They were divorced in 2004 by a judgment that incorporated, but did not merge with their stipulation of settlement. The stipulation provided for the parties to share joint legal custody of the subject children, with the mother having physical custody and the father having liberal visitation. The same provision included the parties’ agreement that neither party would move “beyond a one hundred mile radius of one another so as not to disrupt visitation with the children.”
In 2006 the parties commenced custody cross-petitions that were resolved by a 2007 order of the Family Court that continued joint legal custody, with the mother having physical custody, and set forth a comprehensive liberal visitation schedule for the father, which included alternate weekends, Tuesday and Thursday afternoons, and shared holidays and summers.
[Once the 2004 arrangement was modified, of what import was the 100-mile radius clause of the 2004 agreement? Did the 2004 agreement provide for visitation on 6 out of 14 days (alternate weekends plus 2 afternoons each week)? Did the father exercise this substantial visitation?]
In July, 2011, the father commenced this proceeding alleging that he had learned that the mother was in the process of moving 57 miles away to New Rochelle. The father alleged that it was not in the children’s best interests to move to New Rochelle, because his visitation would be disrupted. Rather, he argued, their best interests would be served by awarding him sole legal and physical custody. The mother opposed the father’s petition, and requested leave to relocate with the subject children to New Rochelle.
After a hearing, Judge Currier Woods agreed with the father and denied the mother’s application to relocate, awarding the father sole legal and physical custody of the subject children. The Second Department reversed.
Although the Family Court was properly concerned about the impact that the move would have on the father’s relationship with the subject children, the record demonstrated that the relocation to New Rochelle would not “deprive the father of regular and meaningful access” to the children.
The Second Department further concluded that the Family Court should have denied the father’s petition for sole legal and physical custody of the subject children.
[W]hile we are mindful that the hearing court has an advantage in being able to observe the demeanor and assess the credibility of witnesses, we would be seriously remiss if, simply in deference to the finding of a Trial Judge, we allowed a custody determination to stand where it lacks a sound and substantial basis in the record.
Here, the Family Court’s award of sole legal and physical custody to the father lacked a sound and substantial basis in the record. The Second Department believed Judge Currier Woods gave “undue weight” to particular instances of conflict between the parties, and to the mother’s failure to consult with the father before determining to move with the subject children to New Rochelle. Furthermore, the trial court failed to give sufficient weight to the fact that the mother had been the primary caregiver for the subject children for their entire lives, and had almost single-handedly addressed their medical and educational needs. In addition, the Family Court failed to give sufficient weight to the fact that awarding the father sole legal and physical custody of the subject children would unavoidably separate them from their younger brother from the mother’s second marriage.