For the second time this month, the Second Department prevented a wife from relocating with the children “locally” when the move would have limited the husband’s substantial involvement in the children’s daily lives. In its January 18, 2017 decision in Lipari v. Lipari, the appellate court affirmed the prohibition of a mother’s proposed relocation from Valley Cottage, in Rockland County, to Rye, in Westchester County, a distance of 17 miles. Only a week earlier, in DeFilippis v. DeFilippis, the Second Department prevented a wife from relocating from Floral Park to East Hampton [last week’s blog post].
In Lipari, under the parties’ divorce settlement the parties shared joint legal custody of their two children, with the mother having primary residential custody. The father had overnight visitation on alternating weekends and certain overnight visitation with the children during each week and during certain school breaks and holidays. With the mother remaining in the Valley Cottage marital residence, the father rented a two-bedroom condominium approximately five minutes away.
When the father learned the mother intended to move to Rye, the father applied to the court to enjoin the mother from relocating there with the children. At the hearing, the father testified that he picked up the children from school every day, even when he did not have scheduled visitation, and cared for them until the mother picked them up when the children weren’t spending the night at his home. He coached many of the children’s sports teams and attended their other extracurricular activities.
He told the court that if the mother relocated to Rye, the amount of time he would be able to spend with them “would be decreased tremendously.” The father worked at various locations in New Jersey, and he would be unable to maintain the same level of involvement in his children’s lives due to the increased commuting time to Rye.
The mother testified that she wished to move to Rye because it would reduce her commute to work as a teacher librarian for the Rye City School District. Based on her work experience, she also believed that the Rye school district was “a lot better” than the Nyack school district, where the children currently attended school, and that she could save money by moving to an apartment in Rye.
Rockland County Supreme Court Justice Robert M. Berliner granted the father’s motion to enjoin the mother from relocating with the children from Valley Cottage to Rye.
The mother appealed and argued that her proposed 17-mile move from Valley Cottage to Rye did not constitute a “relocation” that required an analysis of the best interests of the child and the factors enunciated in the 1996 Court of Appeals decision in Matter of Tropea v. Tropea (87 N.Y.2d 727). The Second Department held that that contention was without merit.
Each relocation request must be considered on its own merits with due consideration of all the relevant facts and circumstances and with predominant emphasis being placed on what outcome is most likely to serve the best interests of the child. . . . No single factor should be treated as dispositive or given such dispositive weight as to predetermine the outcome. The impact of the move on the relationship between the child and the noncustodial parent will remain a central concern.
Here, the appellate court ruled the evidence established that the proposed move would significantly impact the father’s relationship with the children; that the quality and quantity of the father’s contact with the children during the week would be substantially impaired due to the demands of his work and the rush-hour commute to pick up and drop off the children in Rye.
Moreover, the mother failed to demonstrate, by a preponderance of the evidence, that the children’s lives would be enhanced economically, emotionally, or educationally by the move, such that the proposed relocation would be in the children’s best interests. Accordingly, Justice Berliner’s order enjoining the move was affirmed.
Richard J. Feinberg, of New City, represented the father. Cara Lipari represented herself.