We are not moving croppedFor 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.


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We are not moving croppedIn its January 11, 2017 decision in DeFilippis v. DeFilippis, the Appellate Division, Second Department, prevented a wife from relocating with the children from Floral Park to East Hampton, a move that would have curtailed the husband’s involvement in the children’s daily lives, school, and extracurricular activities.

The wife commenced this action for divorce. While the action was pending, the wife sought to relocate. The wife claimed that the move would enhance the children’s lives economically, emotionally, and educationally.

The husband opposed the relocation, contending that if the children moved to East Hampton he would be unable to remain involved in their daily lives, school, or extracurricular activities, as he would see them only on the weekends.

Nassau County Supreme Court Justice Hope Schwartz Zimmerman granted the wife’s relocation motion, and the husband appealed. The Second Department reversed (the appellate court had stayed the relocation order pending the appeal).


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Children in balanceOn 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.


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A mother’s application to relocate with her children to Arizona was properly dismissed where she failed to establish that the relocation would enhance the children’s lives economically or emotionally. In its January 29, 2004 decision in Christy v. Christy, the Second Department affirmed the order of Suffolk County Family Court Attorney Referee Roseann Orlando

Following a custody/visitation dispute, a parent may assert a malpractice claim as a defense to the application for the payment of fees of the Attorney for the Children. However, in its December 5, 2013 opinion in Venecia V. v August V., the Appellate Division, First Department, held that no malpractice had been committed, and no hearing was required to reach that conclusion.

The parties were the divorced parents of three children, now ages 17, 14 and 11. In their divorce action, the trial court had directed that mother would have primary residential custody in the marital apartment in Manhattan. When the mother moved  for an order allowing her to relocate with the children to Demarest, New Jersey, approximately 12 miles outside Manhattan, the father responded by moving for a change of custody. Jo Ann Douglas was then appointed Attorney for the Children.

Among the decisions below, New York County Supreme Court Justice Matthew F. Cooper allowed the relocation. The father’s visitation schedule was modified to account for the children’s schedule, including various extracurricular activities that required them to be in New Jersey.

Opposing the fee application of the Attorney for the Child (“AFC”), the father claimed that attorney had committed malpractice. He claimed that the children’s attorney ignored her professional duty by advocating the position advanced by two out of the three children (that they wanted to relocate with their mother), when the children lacked the “capacity for knowing, voluntary and considered judgment.” The father also claimed that the AFC violated the rules governing professional conduct in matrimonial matters by ignoring “abundant evidence that her clients’ judgment was not voluntary and in fact was manipulated by their mother.” The father charged that the AFC ignored the forensic expert’s observations and conclusions that the mother controlled and manipulated the children, and purposely alienated the children from him. He further argued that the AFC failed to consider post-relocation events, engaged in improper ex parte communications with the court, and assisted the mother in reducing his visitation.


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It is common for a divorce settlement agreement to provide that a child will be emancipated if he or she leaves the residence of the custodial parent. The result is the stated reduction in child support payments to the custodial parent. However, if the child not only leaves the custodial parent, but moves in with the non-custodial parent, may that parent obtain child support from the former custodial parent? That will depend on the language, or more particularly, the lack of language of the parents’ agreement.

Such is the lesson of the July 10, 2013 decision of the Appellate Division, Second Department, in Samuelson v. Samuelson. In that case, the parties were divorced in January, 2011. The divorce judgment incorporated the parties’ 2009 surviving stipulation of settlement.

Under that agreement, the father agreed to pay the mother basic child support of $1,150 per month for the parties’ two children until the occurrence of an “emancipation event,” defined to include a “change in custody.” The stipulation further provided that in the event one child was emancipated, the father’s basic child support obligation would be reduced to $846 per month.

Two months after the divorce judgment was entered, the parties agreed to transfer custody of their son from the mother to the father. Several months later, the father moved for an award of child support from the mother, to be “credited against my child support payments re our minor daughter.” The father claimed he was on the verge of personal bankruptcy.

Supreme Court Queens County Justice William Harrington denied the father’s motion, accepting the mother’s argument, and finding that the parties’ obligations were set by their agreement. The father failed to establish an unanticipated and unreasonable change in circumstances, or that the child’s needs were not being met.

The Second Department affirmed. The parties’ agreement was binding. Since the stipulation set forth the plaintiff’s child support obligation in the event of a change of custody of one of the children, a change in custody of one of the children could not be considered unanticipated.


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Particularly in light of the allegations that the mother threatened to retaliate against her 14-year old daughter’s testimony supporting the father, it was an abuse of discretion for the trial Judge to require the daughter to testify in open court in this custody modification proceeding. The girl should have been interviewed by the judge in chambers without her parents and their lawyers being present.

That sentiment was noted by the Appellate Division, Third Department, in its June 27, 2013 decision in Casarotti v. Casarotti that affirmed Madison County Family Court Judge Biagio DiStefano‘s order changing primary physical custody of the girl from the mother’s residence in New York to the residence of her father in California, despite the presence of the daughter’s 18- and 20-year old siblings in New York.

In this case, the parties were the divorced parents of two daughters (born in 1992 and 1998) and a son (born in 1994). The younger daughter was the only subject of this proceeding.

The family had lived together in northern California until the parties’ separation in 2000. At that time, the mother moved with the three children to New York. The parties later consented to joint custody of the children in a stipulation that was incorporated, but not merged into their 2007 judgment of divorce. In accordance with the stipulation, the mother maintained primary physical custody of the children in New York. The father, who remained in California, was granted liberal parenting time during weekends, winter holidays and summer vacations.

In July 2012, the father commenced this custody modification proceeding, seeking primary physical custody of the child. He alleged that the two older children had moved out of the mother’s house, the mother was emotionally abusive to the youngest child, and that the child now wanted to live with him in California.

Judge DiStefano held a hearing at which the parties, the 14-year-old child and her 20-year-old sister testified. Judge DiStefano granted the father’s petition and awarded him primary physical custody, while otherwise maintaining joint custody.


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U-haul.jpgWhen a judge works this hard to provide a searching analysis of a difficult question, we should sit up and take notice.

Should an unemployed father be required to prove why he should not have to relocate to seek/obtain employment in his field as a condition to him receiving a downward modification of his child support obligations?

Presenting a scholarly review of decisions in New York and around the country, Monroe County Supreme Court Justice Richard A. Dollinger crafted a test to determine whether a parent with substantial child support obligations, and unique job skills, is required as a matter of law to geographically expand his search for employment.

The essential facts in Szalapski v. Schwartz are not unfamiliar. The former spouses have three children, ranging in ages from 10 to 15. When the parties were divorced in 2005, the father was earning $82,000 annually; the mother approximately $6,000. The father’s child support obligation was $1,826.49 monthly.

Mr. Szaplapski (the “father”) is a “multi-disciplinary physicist,” with a career in academia before serving as a staff engineer. He left academics in 2004, electing to stay in western New York to accommodate his family. He worked in software design for which he had only marginal qualifications. In July, 2010, the father was laid off. After his severance pay ended, he received unemployment insurance benefits of $405 per week.

In the application being decided by Justice Dollinger, the father, now remarried, sought to reduce his child support obligation. He alleged that he was unable to find comparable employment in the geographic area where his children live.  His ex-wife challenged the diligence of his job search, but also argued that because of the father’s unique talents, the court must require him to diligently search for employment in a broader geographic area. That the father failed to do.

Justice Dollinger began with a detailed legal and factual analysis of the father’s search for employment in the Rochester area where the parties lived. This exhaustive analysis, itself, presented a primer on the diligent efforts necessary to withstand a motion to dismiss an application for a downward modification of a child support obligation based upon the loss of employment. Based upon the evidence presented Justice Dollinger found that the father presented “a prima facie case for a hearing.”

Noting that a parent’s child support obligations are “paramount.” Justice Dollinger then turned “to the second question: is the applicant required to demonstrate a reasonable job search outside the local community and, if so, how far does his job search have to extend?”


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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.


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