Joel R. Brandes and Carole L. Weidman
IN 1981 THE COURT of Appeals held, in Weiss v. Weiss, [FN1]
that a child has a fundamental right to know and associate with both parents
and that, to be meaningful, visitation must be frequent and regular. A year
later in Friederwitzer v. Friederwitzer, [FN2] the Court held that where a
custodial parent wants to relocate with the child to a distant domicile the
court must view the "totality of circumstances." It must weigh and balance the
relevant considerations, which include the interests of both the custodial
parent, those of the parent having visitation and, last but not least, the
interests of the child. The once primary concern as to visitation rights of
the noncustodial parent became a single factor among many for the Court to
weigh and balance. Friederwitzer firmly established the general rule that the
best interests of the child would ultimately govern relocation cases. As we
shall see this is still the law.
Since Friederwitzer, most New York appellate cases have
focused primarily on the custodial parent's burdens to justify the removal by
showing a "pressing concern" for the welfare of the child or exceptional
circumstances [FN3] such as remarriage of the custodial parent or economic
necessity. [FN4] Because of this, many lawyers and clients have been confused
as to just what the law requires to be shown to authorize a relocation and
have not understood Friederwitzer's holding that the child's best interests
prevails. Weiss v. Weiss, [FN5] held that the custodial mother should be
enjoined from relocating with the child to Las Vegas. The Court noted the
expressed desires of the child, the infringement upon the rights of the
noncustodial parent to visitation and the lack of exceptional circumstances
requiring such a move.
Variety of Interpretations
As we wrote in this column two years ago, [FN6] reconciling
the New York decisions on removal is nearly impossible. Different courts have
read a variety of meanings into the ambiguous concepts of "best interests,"
"pressing needs" and "exceptional circumstances." Most often it becomes a
"judgment call." We noted that in determining what is in the child's "best
interest," where the appropriate considerations are fairly evenly balanced,
weight must be given to the nature of the relationship between the child and
the parent having visitation rights.
If such rights were not exercised, or the party having
visitation has behaved irresponsibly as a parent or forfeited his or her
visitation privileges, the interests of the child and such parent are
diminished, but if there has been an ongoing meaningful relationship with the
noncustodial party or parent, the interests of the child and such parent are
enhanced. We concluded then that the rule was best stated by the Fourth
Department in Wodka v. Wodka, [FN7] where the court, in reversing the Supreme
Court held that it was an abuse of discretion to direct the mother, who
relocated with the child, to return to New York State without considering the
child's best interests:
The standard ultimately to be applied remains the best
interests of the child when all of the applicable factors are considered (Friederwitzer
v. Friederwitzer, 55 NY2d 89, 95, 447 NYS2d 893, 432 NE2d 765). In the instant
case, the Court on numerous occasions stated that it did not consider the
child's best interests relevant to its determination of the relocation issue.
This was error.
In the past two years many Appellate Courts have
unsuccessfully tried to establish a general rule for attorneys to apply in
"relocation cases," but it was not until recently that a test to determine if
relocation should be permitted under the "best interest" rule of Friederwitzer
was articulated.
In Elkus v. Elkus [FN8] the parties' 1990 divorce judgment,
which incorporated their Stipulation of Settlement provided for joint custody
of their two daughters. The mother remarried. Shortly afterward she moved for
permission to relocate with the children to California where her new husband
resided with his 17-year-old daughter. The mother was an internationally
renowned opera singer who earned about $800,000 a year. The father earned
about $90,000 per year and had inherited wealth. He opposed the application on
the ground that he and the two children had a close relationship that would be
jeopardized by a move to California. Over the previous year and a half, he
visited the children in their house on Long Island, every other weekend and
twice during the week. The Supreme Court denied the mother's application. It
held that the relocation was against the best interests of the children, age
14 and 12, who opposed the relocation because the mother's scheduled operatic
engagements required extended absences from California and since she had no
plans to hire a housekeeper, her new husband would be the children's primary
caretaker.
The Supreme Court indicated its willingness to grant the
mother permission to relocate at the end of the school year in June 1992, when
the older child would have graduated junior high school, upon a showing that
the children were properly prepared for the move. The Appellate Division
affirmed this order. Subsequently, the mother rearranged her professional
schedule to minimize her absences from California. She took the children to a
therapist to prepare them for the move and offered to assume financial
responsibility for visitation- related expenses, including airfare, phone
calls and a rental apartment for the father in California. She found suitable
educational facilities for the children in California and hired a housekeeper
to care for them during her absences.
Improper Standard
Despite these efforts, the children continued to oppose the
relocation. A second guardian ad litem appointed by the court opposed this
relocation, as did the court-appointed psychologist who concluded that the
children's best interests would be served by their remaining on Long Island.
The Supreme Court nevertheless granted the mother's motion to relocate. The
Appellate Division, First Department, reversed. It held that the Supreme Court
applied an improper standard, and the requisite standard of "exceptional
circumstances" justifying relocation had not been met. The fact that the new
husband resided in California and could not relocate and that the move would
be advantageous to the mother's career were insufficient, in the absence of a
showing of economic necessity or other exceptional circumstances to justify
the relocation of the children. It noted that the mother's frequent absences
necessitated by her professional engagements were an important consideration
in any "best interest" assessment, underscoring the significance of the
children's relationship with their father and the stabilizing influence of
their friends, school and surroundings.
The Supreme Court failed to address the reasons advanced by
the guardian and the psychiatrist for opposing relocation, all of which
revolved around the general rule that disfavors distant geographic relocations
tending to frustrate the objective of regular contact with both parents. The
quality of the father's visitation could only suffer when frequency and
flexibility were diminished. The Appellate Division held that the relocation
to California would limit the frequency of visitation with the father and have
an adverse effect on the nature and quality of his relationship with the
children.
In Atkin v. McDaniel [FN9] the parties executed a separation
agreement in 1989, providing for joint custody of their three children.
Physical custody was with the husband during the school year and with the wife
during the summer. The parties were divorced in 1990. Thereafter, the husband
sought a Family Court order confirming the custody and visitation arrangements
set forth in the separation agreement. The wife cross-moved to have the
children's principal residence with her. After a hearing, Family Court awarded
physical custody of the parties' oldest child to the husband and physical
custody of the two younger children to the wife. The Appellate Division, Third
Department, reversed.
Flawed Analysis
It held that the Family Court's analysis of the children's
best interests was flawed because of its failure to take into account that
after the parties agreed to the children's primary residence with the husband
at the former marital residence in Delaware County, the wife relocated to
North Carolina with her boyfriend, where she subsequently obtained employment.
It held that in cases where the custodial parent seeks a geographic relocation
that substantially affects the noncustodial parent's visitation, "exceptional
circumstances" must be shown by the relocating parent. A similar showing was
required in this case, where the non-custodial parent relocated to a distant
location and thereafter sought custody of the children. The record revealed
that the wife and her boyfriend moved to North Carolina to obtain better
employment despite the existence of employment opportunities in New York,
where they had been residing. It stated that the wife's relocation was also
relevant to the issue of stability in the children's lives, which Courts have
recognized as an important factor in determining the children's "best
interests."
The marital home had been the children's residence since 1984.
They had friends and other family members in the area and they attended the
local school. Relocation of the two younger children to the wife's new home in
North Carolina would not only disrupt the established custody arrangement and
separate the children, the wife's decision to move to North Carolina was a
voluntary one motivated by purely personal reasons.
In Sanders v. Sanders [FN10] the parties' stipulation, which
was incorporated into their 1989 divorce judgment provided for joint custody
with primary physical custody to the wife and alternate weekend visitation to
the husband. The custody agreement did not address the possibility of either
party's relocation. In 1990, without notice to the husband, the wife moved to
Florida with the two children, to be with her fiancee. He was a long-time
Florida resident who was employed in his family's company. The husband married
a woman with two children, who indicated that she would welcome the husband's
two children in their new home. The husband brought an action seeking the
return of the wife and children, or, in the alternative, a change of physical
custody.
After a hearing, the Supreme Court ordered that, if the wife
remained in Florida, physical custody would be granted to the husband as of
July 1992. The Appellate Division, Fourth Department, affirmed. It held that
the wife's relocation to Florida was not justified by such exceptional
circumstances that would excuse her effective termination of the husband's
visitation rights under the parties' agreement. The court directed the wife to
return the children to New York on or before Aug. 17, 1992, before the start
of the school year. If she failed to return with the children by that date,
permanent physical custody of the children was to be transferred to the
husband.
Economic Betterment
In Leslie v. Leslie [FN11] the parties were married in 1976
and had one child. In 1988, the wife left the marital residence with the
child, moved to her parent's home and started a divorce action against the
husband. After a non-jury trial, the Supreme Court permitted the wife and
child to relocate to Virginia, based on the fact that the maternal
grandparents with whom the wife and child had been living were moving to
Virginia, the wife and child would be able to live in Virginia as well or
better than in New York and the move would not deprive the husband of regular
access to his son.
The Appellate Division, Second Department, reversed and
directed that custody be awarded to the husband unless the wife returned to a
residence that was within 50 miles of the husband's residence in New York. It
found that the wife's desire to move to Virginia was predicated upon her
desire to obtain a doctoral degree from the University of Virginia. There was
no evidence that she had fully investigated her educational options and
opportunities in New York. The wife asserted that the move to Virginia would
improve her and her child's standard of living. However, the Appellate Court
held that a desire for economic betterment as opposed to economic necessity
does not constitute an "exceptional circumstance" sufficient to justify a move
that would significantly curtail visitation by the non-custodial parent.
The husband had fully taken advantage of his visitation rights
and developed a meaningful relationship with his son. The Appellate Division
stated that although the predominant concern is the best interests of the
child, the resolution of such disputes requires a careful balancing of the
rights and problems of both the child and his/her parents. Significantly it
found that the wife's move deprived the husband of regular access to his son,
which was not in the best interests of the child, and it directed that the
best interests of the child mandate that the husband be awarded custody unless
the wife returned to New York.
In Smith v. Finger [FN12] the parties were divorced in 1989.
They had one son. Their separation agreement, which was incorporated by
reference but did not merge with the divorce judgment, provided for joint
custody, with each parent having physical custody of their son during
alternating weeks until the child's fifth birthday, or until he entered
kindergarten, whichever last occurred. Thereafter, during the next three
years, the mother would have weekday custody during the school year and the
husband would have custody every weekend.
After the child's eighth birthday, or when he entered third
grade, whichever last occurred, the custody arrangement would be reversed with
the father having week-day custody during the school year and the mother
having custody on weekends and vice versa.
In December 1990, the wife married a dentist with an
established practice in Virginia. In 1991, just before the son's fifth
birthday, the mother applied to the Supreme Court, pursuant to the parties'
agreement, for authorization to relocate with the child to Virginia. By
separate motion, the father sought to enjoin the mother from moving or to
transfer custody of the child to him. During the pendency of these motions,
the parties agreed that the child would reside with the mother in Virginia
during the week and visit with the father on weekends. The wife moved to
Virginia in June 1991. After a hearing, Supreme Court held that the joint
custody arrangement was not in the child's best interest and granted the
mother sole custody with liberal visitation to the father.
The Appellate Division, Second Department, affirmed. It found
that the mother's relocation would not effectively curtail the visitation
rights of the father, nor deprive him of regular and meaningful access to the
child. The father had been awarded liberal visitation. The trial court found
that the mother's desire to relocate to Virginia was not motivated by a bad
faith desire to curtail the father's visitation. The court-appointed
psychiatrist testified that the mother was the one who was more likely to
encourage the child to maintain a healthy relationship with the father. Both
parties had the financial resources to pay for the travel entailed in
continuing the father's role in the child's life. The mother's move to
Virginia, was permitted pursuant to the terms of the parties' separation
agreement that specifically authorized a move to the Washington, D.C., area.
The recommendation of the court-appointed psychologist favored the relocation.
Disrupted Relationship
Recently, in Radford v. Propper, [FN13] Justice Vincent R.
Balletta of the Second Department dealt with the "thorny problem" that arises
where the custodial parent wants to relocate to a distance that is far enough
(90 miles) to disrupt the relationship between the non-custodial parent and
the child. His opinion attempted to "provide a framework for the analysis of
situations."
The parties were married in June 1982 and had one child,
Steven, born on May 10, 1983. In early 1985, the mother moved out of the
marital home in Brooklyn. They were divorced in May 1986. Pursuant to a
separation agreement, which was incorporated but not merged in the judgment of
divorce, the father and mother shared joint custody of the child, with the
child's primary residence being with the father. The mother was to have
visitation on every Tuesday and Thursday evening from 6 p.m. to 8 p.m.,
alternate weekends, alternate holidays and four weeks in the summer. The
judgment of divorce provided that the parties agreed that neither party could
take Steven out of New York, except for day trips to New Jersey and
Connecticut, without prior notice to the other party. After the divorce, the
father and child continued to reside with the child's paternal grandmother,
who was the child's primary caretaker.
In March 1990, the mother commenced a proceeding to modify the
judgment of divorce to obtain sole custody. After forensic examinations and a
hearing, the Family Court denied the mother's application. The court concluded
that while neither parent was unfit, it was in the child's best interests to
remain in the physical custody of his father since, in its view, his father
could better provide him with a stable environment and continuity. A few weeks
after the Family Court's decision, the father informed the mother that he
intended to remarry and would be relocating with the child to New Jersey. On
Dec. 18, 1991, the parties stipulated to a modification that allowed the
father to take Steven to New Jersey provided that it did not interfere with
the mother's visitation, that Steven continue to attend his school in Brooklyn
and that Steven's permanent residence remain in Brooklyn.
Subsequently, a hearing was held before the Family Court at
which, it was established that after Steven's father had remarried, he and his
new wife decided to move to her condominium in Lawrenceville, N.J., which was
about 90 miles away from Steven's mother's home in Bethpage, N.Y. They had
also contracted to purchase a new home, which was under construction in nearby
Cranbury, N.J. The father testified that he wanted to move to New Jersey
because it would save his wife commuting time, they could afford more in New
Jersey, it was a better environment for Steven, and the school districts were
excellent.
He further testified that he was "flexible" regarding any new
arrangements for visitation and stated that he would even meet Steven's mother
halfway at some point on Staten Island. However, he did state that he would
not be willing to transport Steven the entire way to the mother's house in
Bethpage because the two-hour trip would be "unduly burdensome."
Steven's mother testified that she attended Steven's Little
League games, his school plays and his school conferences. She also testified
that while it was only 32 miles from her home in Bethpage to Steven's
residence in Brooklyn, it was more than 90 miles to Lawrenceville, N.J., and
that the ride could take up to three hours. The Family Court found that the
father's move was solely for his convenience and for that of his new wife. The
court further found that although the move was not intended to foreclose
visitation, it would have the practical effect of terminating the weekday
visitation and limit the mother's ability to be involved in Steven's school
life. Moreover, the father was better able to visit Steven since the mother
had to care for another infant, and he regularly worked in Manhattan. The
Family Court determined that it was in the best interests of the child for his
physical custody to be transferred to his mother. The court also established a
visitation schedule for the father.
Regular Access
Justice Balletta set forth the principles applicable to such
cases and considered that although each case had its own set of circumstances:
... one principle cannot be ignored in favor of another. The
evaluation of these cases has proven to be difficult; indeed, some
commentators have noted that "reconciling the New York decisions on removal is
nearly impossible (see Freed, Brandes and Weidman, "Relocation: A Child's
Dilemma," NYLJ, Dec. 31, 1991, at 3, Col. 1; compare, Rybicki v. Rybicki, 176
AD2d 867, supra [move from Northport, N.Y., to Fairfield County, Conn., a
distance of 84 miles, not allowed] with Conte v. Conte, 176 AD2d 247 [move
from Queens County to Sullivan County, a distance of 125 miles, allowed.]
He then went on to articulate "some guidelines that may be usd
in any relocation case." He stated that:
... the threshold question that must be answered is whether
the proposed move would effectively deprive the noncustodial parent of that
frequent and regular access to his or her children so as to require the
relocating parent to demonstrate exceptional circumstances. Will the move be
unduly disruptive of, or substantially impair, the noncustodial parent's
visitation rights? *** In considering this question, the court should not look
solely at numerical distance, but it should also take into account other
factors such as travel time, the burdens and expense involved in traveling,
*** the number of visitation hours that would ultimately be lost, the
frequency of visitation, the regularity with which the noncustodial parent
exercised visitation, and the involvement of the noncustodial parent in the
lives of his or her children. *** Where a proposed move may, or is likely to
deprive a noncustodial parent of regular and meaningful access to and
interaction with his or her children, two further tests must be satisfied by
the custodial parent wishing to relocate. First, the relocating parent must
establish the existence of exceptional circumstances to warrant the
relocation. Accordingly, there must be shown some compelling concern for the
welfare of the custodial parent or the children. *** Exceptional or compelling
circumstances have been stated to include "exceptional financial, educational,
employment, or health considerations *** which necessitates or justify the
move." *** The burden of providing such exceptional circumstances is upon the
custodial parent who seeks relocation, and it is a heavy burden. ***
It should be noted that the remarriage of the custodial parent
alone is rarely a sufficient justification for allowing the custodial parent
to remove the child from the State. *** Further, neither economic betterment
nor the offer of a promotion and salary increase has been found to constitute
an exceptional circumstance justifying a relocation.
Further, even if it can be shown that exceptional
circumstances exist, the relocating parent must than establish that the
relocation is in the best interests of the child. ***
Here the court found that the drive to Staten Island, where
the proposed meeting point was to be, could take two or three hours when
considering the traffic through Brooklyn and Queens. Additionally, the
father's move would terminate the mother's weekday visits and limit her
ability to be involved in Steven's schooling. As such, the father's relocation
would deprive the mother of meaningful access to Steven without considering
numerical mileage. It was clear, therefore, that the circumstances of this
case required a showing of exceptional circumstance.
With this established, the court concluded that the father had
failed to show that circumstances exist that would justify relocation with the
child. The relocation to New Jersey was solely for the commuting convenience
of the father and his new wife and did not take into consideration the best
interests of the child. As a consequence thereof the Order was affirmed.
Radford v. Propper, established a three-prong test to
determine if relocation should be permitted: (1) Would the proposed move
effectively deprive the non- custodial parent of frequent and regular access
to the child? (2) If so, are there exceptional circumstances permitting the
relocation? and (3) If there are exceptional circumstances, or not, is the
relocation in the "best interest" of the child?
This is exactly what the Court of Appeals said in
Friederwitzer in 1981. [FN14]
FN1. 1981, 52 NY2d 170, 436 NYS2d 862, 418 NE2d 377.
FN2. 1982, 55 NY 89, 447 NYS2d 893, 432 NE2d 765.
FN3. Courten v. Courten (1983, 2d Dept.), 92 AD2d 579, 459
NYS2d 464; Daghir v. Daghir (1982), 56 NY2d 938, 453 NYS2d 609, 439 NE2d 324,
affg (82 AD2d 191, 441 NYS2d 494); Savino v. Savino (1985, 2d Dept.), 110 AD2d
642, 487 NYS2d 378; Schwartz v. Schwartz (1982, 2d Dept.), 91 AD2d 628, 456
NYS2d 811.
FN4. See also, Savino v. Savino, supra; Cataldi v. Shaw (1984,
2d Dept.), 101 AD2d 823, 475 NYS2d 480; Martinez v. Konczewski (1981, 2d
Dept.), 85 AD 717, 445 NYS2d 844, app dismd 56 NY2d 592, 450 NYS2d 308, 435
NE2d 678 and affd 57 NY2d 809, 455 NYS2d 599, 441 NE2d 1117.
FN5. 1980, 2d Dept. 76 AD2d 863, 428 NYS2d 506, affd 52 NY2d
170, 436 NYS2d 862, 418 NE2d 377.
FN6. See Freed, Brandes and Weidman, "Relocation: A Child's
Dilemma," New York Law Journal, Dec. 31, 1991, P.3, Col. 3
FN7. 1990, 4th Dept. 168 AD2d 1000, 565 NYS2d 354.
FN8. 1992, 1st Dept. 182 AD2d 45, 588 NYS2d 138.
FN9. 1992, 3d Dept. ___ AD2d ___, 585 NYS2d 849.
FN10. 1992, 4th Dept. ___ AD2d ___, 585 NYS2d 891.
FN11. 1992, 2d Dept. 180 AD2d 620, 579 NYS2d 164.
FN12. 1992, 2d Dept. ___ AD2d ___, 590 NYS2d 301.
FN13. Radford v. Propper (2d Dept., 1993) ___ AD2d ___, 597
NYS2d 967.
FN14. And so did the Third Department in Clark v. Dunn (1993,
3d Dept.) ___ AD2d ___, 600 NYS2d 378, which was decided July 15, 1993, where
the move by the mother and her new husband was to Alaska. The Third Department
held that a presumption arises that "such out-of-state relocation is not in
the best interest of the children." In language similar to that of Justice
Balletta the court stated: " ... and, where, as here, the move would deprive
the noncustodial parent of regular and meaningful visitation, compelling or
exceptional circumstances must be shown by the relocating parent (***). Only
after determining that exceptional circumstances exist must the best interest
of the children also be shown (***)." [citations omitted]
See also Murphy v. Murphy (1993, 3d Dept.) ___ AD2d ___, 600
NYS2d 373, decided the same day, where the Third Department reiterated the
same rule in prohibiting a move by the mother from Ulster County to Monroe
County, where it would deprive the noncustodial parent of regular and frequent
visitation. It stated that the mother had to demonstrate compelling or
exceptional circumstances that required her to relocate and that the
relocation was in the children's best interest.
Joel R. Brandes and Carole L. Weidman have law offices in New
York City and Garden City. Mr. Brandes is a co-author, with the late Doris
Jonas Freed and Henry H. Foster, of Law and the Family, New York (Lawyers'
Co-Operative, Publishing Co., Rochester, N.Y.) Ms. Weidman co-authors the
annual supplements with him.
11/23/93 NYLJ 3, (col. 1)
END OF DOCUMENT
