we are moving with question mark flipped.jpgAs noted in the February 8, 2010 post, seven very recent decisions reveal just how present are applications by separated parents to relocate with children. These decisions demonstrate that relocation applications will be decided very much on a case-by-case basis. However, common inquiries are evident:

  • To what extent is the relocation a necessity?
  • To what extent has the relocating parent fostered the relationship between the child and the parent left behind?
  • To what extent has the parent left behind exercised rights of visitation and sacrificed to be involved in the life of the child?
  • To what extent will educational and other opportunities for the child be enhanced by the relocation?

The prior blog post reported on four decisions of the Appellate Division, Third Department. This post discusses the remaining three.

In its January 31, 2012 decision in Ramirez v. Velazquez, the Fourth Department affirmed the order of Oneida County Family Court Judicial Hearing Officer John E. Flemma that denied permission to a 20-year-old mother to relocate with the parties’ three children from Utica to New York City.

Previously in this case, the Fourth Department had reversed a earlier decision of J.H.O. Flemma also in the father’s favor (granting the father’s motion to dismiss the mother’s petition at the close of the mother’s case).  At that time, the First Department noted that the parents of the 20-year-old mother, who provided extensive assistance to the mother, were themselves moving to New York City. These grandparents would continue to provide assistance if the mother were allowed to relocate. Moreover, the mother had several family members in the New York City area who were available to assist with housing and childcare. On the other hand, the mother had established that the father did not work to support the children, that he sold marijuana and that, based upon an incident of domestic violence, the court had issued an order of protection in favor of the mother. Accordingly, the Fourth Department previously reinstated the mother’s petition for further proceedings.

Now, following the conclusion of those reinstated proceedings, the Fourth Department concluded that J.H.O. Flemma properly denied permission for the mother to relocate. The father made use of alternate-weekend visitation as well as during all school vacations and extensive visitation during the summer. The parties frequently agreed to additional visitation between the father and the children when the father was not working, and other times at the mother’s request. The children shared a close bond with the father’s mother and sister with whom the father lived. Because the relationship between father and children, along with other relatives, would be adversely affected by the proposed relocation, permission was denied.

In its January 17, 2012 decision of the Second Department in McBryde v. Bodden, the court affirmed the order of Kings County Family Court Judge Ann E. O’Shea that denied a mother’s application to permit her to relocate with the parties’ son to Alabama.

Although the mother would have the opportunity to live rent-free in a home owned by the mother’s mother and stepfather, the mother did not have a job awaiting her in Alabama, nor was evidence presented that the school in Alabama was better than the one attended in New York.

On the other hand, the father established that he consistently exercised his right to visitation, desire to spend more time with his son, and that the mother made minimal efforts to foster the relationship between father and son.

The circumstances did not justify “the drastic reduction in visitation with the father which would occur, and that, therefore, the proposed relocation is not in best interests of the child.” The court also affirmed the decision, below, which awarded the father expanded visitation.

Finally, in her November 22, 2011 decision in JG v. MG, Supreme Court New York County Justice Deborah A. Kaplan allowed a mother to relocate with her eight-year-old daughter to San Diego, California or Nashville Tennessee. Over objection of the father, apparently within a contested divorce, the Court recognized that the requested move was an “economic necessity.”

The mother was a self-employed book publisher whose insolvent entities had to be closed. Justice Kaplan took great pains to provide not only to provide the various facts she considered when reaching her decision, but, in essence, revealed her thought processes when weighing and balancing those facts.

Equally noteworthy were the efforts of the mother and her attorney, David J. Lansner of Manhattan, who documented in great detail the efforts of the mother to find local employment, her need to find new housing in all events, the available schools in all areas, the mother’s role as primary caretaker, her flexible approach to adjust visitation, etc.

Justice Kaplan was careful to present a balanced summary. Nevertheless, it was made clear that the father did not do all he could to maximize his time with his daughter, or to make payments of court-ordered obligations or to contribute to extra-curricular expenses.

The Court noted that the father’s ties to New York as a part-time personal trainer and apprentice carpenter were not unbreakable: he could arguably work as a trainer in another city.

Therefore, a parallel move is not beyond the realm of options in this case and the court may consider “the possibility and feasibility of a parallel move by an involved and committed noncustodial parent as an alternative to restricting a custodial parent’s mobility.”

Justice Kaplan noted that “the resolution of relocation disputes is left to the fact-finding and discretion of the lower courts.”  Here, the Court determined that the mother had established by a preponderance of the evidence that the proposed relocation would serve the best interests of the child.

These seven recent decisions tell us that laying the groundwork for an application to relocate, or to oppose such an application, does not begin when the opportunity to relocate presents itself. To the contrary, each parent begins to build the “record” from the moment the parents separate, if not earlier.

But, then, it truly would be in the best interests of the child if every parent were to begin laying the groundwork at that time.