we are moving with question mark.jpgSeven decisions published in the last few months reveal just how significant an issue parent relocation remains. Perhaps it results from a difficult economy; perhaps a simple reflection of our mobile society.

Whatever the cause, these decisions reveal the judicial system’s agony when trying to predict the “best interest of a child.”

Four of these decisions come out of upstate’s Appellate Division, Third Department. To begin, in its December 8, 2011 decision in Kirshy-Stallworth v. Chapman, the appellate court affirmed the order of Ulster County Family Court Judge Anthony McGinty which dismissed a mother’s petition to relocate with her eight-year-old daughter and current husband to Western Pennsylvania.  The Third Department noted that:

a lower-court decision “will not be disturbed if supported by a sound and substantial basis in the record.”

The court recognized that, admittedly, there were benefits to the mother which might support a decision to allow the relocation. She was disabled and receiving Social Security disability benefits while her husband had suffered a work-related injury and had difficulty finding suitable employment. He was offered a job in a car dealership by the mother’s uncle. There was lower-court testimony of the mother’s excellent parenting, the father’s failure to fully avail himself of visitation rights, and the mother’s promise to facilitate visits with the father after her move.

However, there was a lack of evidence that the mother’s current community was unsatisfactory, or that the child’s current school was not meeting her needs. There was insufficient evidence that the educational opportunities for the child were any better in Pennsylvania. The plans for the mother’s housing and her husband’s employment were not certain. With such a record, the appellate court could not conclude that Judge McGinty’s determination, that the mother had failed to demonstrate that relocation would be in the child’s best interest, lacked a sound in substantial basis. Accordingly, the dismissal of the mother’s petition was affirmed.

Similarly, the December 22, 2011 decision of the Third Department in Williams v. Williams affirmed the order of Broome County Family Court Judge Mary Connerton which dismissed a mother’s application to move with the parties’ 10-year-old son to North Carolina. The mother’s primary motivation was to be with her boyfriend. More than once during the Family Court hearing the mother stated that she intended to move to North Carolina regardless of the outcome of her application.

Moreover, the court found that the proposed move would not result in an economic benefit for the mother or otherwise meaningfully advance her career. The mother failed to offer any proof of any significant improvement offered by the North Carolina school system. The weekly interaction between the father and child would be disrupted substantially by proposed relocation.

For the third time in December, the Third Department, in Scheffey-Hohle v Durfee, held that a requested relocation was not in a child’s best interests. However, there the appellate court (in a decision that split the court 3 Justices to 2), reversed the order of Schuyler County Family Court Judge J.C. Argetsinger that would have allowed the mother to move with her 10-year-old daughter and her new husband (with whom she had two sons) to Pittsburgh, Pennsylvania.

The appellate court was apparently persuaded by the fact that for the three years preceding the application, the parties had shared physical custody of their daughter, an arrangement established by their prior consent.  This had proven “eminently workable” and “extraordinarily beneficial to the child.”  The daughter reaped “the rewards of having two loving parents actively – and essentially equally – involved in her daily life.” The appellate court noted the “unenviable task” to which the Family Court judge was faced; having to determine which parent would be deprived of the regular and meaningful access to the child each had enjoyed.

The stepfather (the mother’s new husband) had accepted a new job in a supervisory position that would have stabilized his income and improved his family’s quality of life. Previously, the stepfather’s job required him to be away from home for six-to eight-week stints, although each trip provided him with increased “field pay.” The Third Department noted that although the stepfather could not be faulted for wanting to travel less, the relocation effectively shifted the travel burden from the stepfather to the child to her biological father.

On the other hand, the father’s devotion to his daughter was “virtually unparalleled.” The father had moved twice to be closer to his child, purchasing property within the daughter’s school district so that the child could remain at the same school in the event the mother and her husband pursued a business opportunity they were considering that could have resulted in the child having to change schools.

The fact that the mother expressed a willingness to adjust the visitation schedule to one which would afford the father approximately the same number of total hours. However, that adjusted schedule would nevertheless deprive the father of regular and meaningful access to his child, and deprive the daughter of her father’s consistent presence. Moreover, the daughter was actively involved in social and extracurricular activities with friends and classmates in her current community. Noticeably absent from the record was evidence that the Pittsburgh schools were superior to those in Schuyler County where the child was a gifted student.

[W]e are hard pressed to conclude that the move would enhance the child’s overall emotional development and well-being, as she was — by all accounts — flourishing in her then-existing environment.

As a result, the three-judge majority in the Appellate Division held that the mother had failed to meet her burden to prove that relocation would be in the child’s best interest.

The two-judge dissent was mindful of the trial court’s interview with the child and the “importance of viewing witnesses to the evaluation of their ‘testimony, character and sincerity’ when weighing factors pertinent to a child’s best interest. The dissent believed that there was a detailed, well-reasoned decision that thoroughly discussed and weighed the relevant factors, revealing the “sound and substantial basis in the record supporting Family Court’s determination.”

In the Third Department’s decision on January 12, 2012 in Adams v. Bracci, the court affirmed an order of Delaware County Family Court Judge Carl F. Becker granting the father, who had been the primary physical and joint legal custodian of the parties’ six-year-old daughter, permission to relocate with the daughter from Newburgh in Orange County to Philadelphia.

The father, an enlisted Marine, was informed that he was being transferred to Philadelphia. Thus, the father’s relocation was not his choice. His prior decision to re-up in the Marines provided the father with stable employment during turbulent economic times, and provided his family with health insurance benefits. With his reassignment, he will work regular daytime hours, at home with the child in the evening and on weekends.

Before the relocation, the mother had lived two hours away. Thus, while the now five-hour drive was longer, it did not directly affect the mother’s ability to exercise visitation. Moreover, the mother had failed to pay court-ordered child support, resulting in the suspension of her driver’s license. That already complicated her transportation for visits.

The lower court also modified the parents’ joint legal custody. The relationship between father and mother had been strained by cross-allegations of abuse. Health care decisions were disputed. The mother’s’s mother was toxic to the parents’ relationship and their ability to communicate with each other. The father was open to foster the child’s relationship with the mother, while the mother was less likely to do so. The previous award of joint legal custody was modified to provide the father with sole legal custody. Additionally, based upon Judge Becker’s credibility determinations, the mother was made responsible for all transportation arrangements, an aspect of the order, below, which the Appellate Division also affirmed.

Although the Adams decision is supported by its particular facts, one cannot help but envision the fallout that would result from a decision which found that the challenges inherent in the service of one’s country as a member of its armed forces was a basis to take away a child from the primary caretaker.

Part II will be published February 10, 2012.