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.

Continue Reading Relocation of the Single Parent and Child: Recent Decisions (Part I)

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The May 5, 2011 decision of the Appellate Division Third Department in Munson v. Fanning, highlights the need for difficult discussions and prioritization before taking life-altering steps. It is also another call for the expanded use of the Collaborative Law Process.

In this case, the parties’ 12-year old daughter had been born after her parents had separated and divorced. The mother sought and permission to move with the child to California to join her new husband who had taken a new job. Saratoga Family Court Judge Courtenay W. Hall denied that relief, but revised the father’s visitation schedule to allow the mother to join her husband for extended periods during school recesses.

The appellate court reviewed whether the mother met her burden of proving by a preponderance of the credible evidence that the relocation was in the child’s best interests. Quoting the 1996 landmark decision of the Court of Appeals in Tropea v. Tropea, 87 N.Y.2d 727, 642 N.Y.S.2d 575, the court stated:

The factors to be considered in making such a determination include “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.”

The court recognized the healthy relationship the daughter developed the mother’s new husband, as well as her other children, all of whom were to reside in California. The step-father’s new job in California would allow her to stay at home and raise her children. The attorney for the daughter (formerly called the Law Guardian) supported the relocation.

Continue Reading Relocation to California Denied Mother with 12-year Old Daughter