On the night of August 24, 2013, the father received an email from the mother stating that she and the children had moved from East Hampton to Westhampton Beach—a distance of about 32 miles. Under their divorce settlement stipulation entered just 3 months earlier, it was agreed that the parties would share joint custody of their two children. The mother was to have residential custody of the children, subject to parenting time by the father from 4:00 p.m. to 6:00 p.m. on Mondays, Tuesdays, and Thursdays, from 4:00 p.m. to 7:30 p.m. on Wednesdays, and on alternate weekends (i.e., on 8 out of 11 days).
In September, 2013, the father moved to enjoin the mother from relocating. At the ensuing hearing, the father testified that he normally works from 8:00 a.m. until 4:00 p.m. on weekdays. He testified that it usually took him about five minutes after finishing work to drive to the former marital residence in East Hampton to pick up the children for visitation. He further testified that it now took him 50 minutes to drive from his home in East Hampton to the mother’s new home in Westhampton Beach.
The mother testified that she moved because she had voluntarily changed jobs from a bank located in Bridgehampton to a bank located in Medford, and that the move cut 30 minutes off her new commute in each direction. She testified that her total compensation at the new job was comparable to her total compensation at her old job. She further testified that she moved to be closer to her parents in Riverhead. She testified that the children saw her parents about twice a month when they lived in the former marital residence in East Hampton, and about once a week after the move to Westhampton Beach.
Sufflok County Supreme Court Justice Stephen M. Behar granted the father’s motion to enjoin the mother’s relocation. The mother appealed.
By its December 2, 2015 decision in Quinn v. Quinn, the Appellate Division, Second Department affirmed.
A parent seeking to relocate with a child bears the burden of establishing by a preponderance of the evidence that the proposed move would be in the child’s best interests.
The factors to be considered “include, but are certainly not limited to 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.”
Here, the Second Department recognized that the mother’s move from East Hampton to Westhampton Beach significantly limited the father’s contact with the children. By lengthening the father’s commute from a few minutes to almost an hour, the move effectively cut the father’s weekday visitation in half. The mother also failed to demonstrate, by a preponderance of the evidence, that the children’s lives would be enhanced economically, emotionally, or educationally by the move.
Comment, or rather questions: We are not told where the mother and children were living during the entirety of the lower court proceeding, or during the appeal. It took some 13 months to reach Justice Behar’s decision and another 14 months to reach the appellate decision. This timetable is certainly common, if not quick.
If the children continued to reside in Medford during the proceedings, how long will it now take the mother to move back? How much additional litigation will be involved?
How does this father get back the two to three years of diminished visitation? How do the children get back the benefits they were to receive under the visitation schedule to which the parties agreed just three months before the mother moved?
Is this another example of the “operation being a success, but the patient died?” If the judicial system, only, is charged with the responsibility to make custody/visitation decisions (these issues cannot be determined by arbitration, as they can in New Jersey and elsewhere), how do we fix that system, giving it the resources needed to resolve such matters more quickly?
C. Donald Shlimbaum, of Shlimbaum & Shlimbaum, of Central Islip, represented the father. Arnold B. Firestone, of Firestone & Breud, PLLC, of Commack, represented the mother. Catherine C. DeSanto, of Riverhead, as attorney for the children.