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When the Custodial Parent Relocates

By Joel R. Brandes and Carole L. Weidman

New York Law Journal (p. 3, col. 1)

February 24, 1995

       FOR YEARS, ISSUES surrounding relocation brought a dizzying 
  succession of cases. In 1982, the Court of Appeals caught our attention 
  by holding in Friederwitzer v. Friederwitzer*1 that when a custodial 
  parent wants to relocate with his or her child to a distant place the 
  court must have a view toward the ``totality of circumstances'' with 
  the ``best interests'' of the child ultimately controlling. In the 10 
  years following Friederwitzer, the appellate cases focused primarily on 
  the custodial parent's burden to justify the removal by showing a 
  ``pressing concern'' for the welfare of the child or ``exceptional 
  circumstances''*2 such as remarriage of the custodial parent or 
  economic necessity. While these general themes flowed throughout the 
  decisions that followed there seemed to be no real rhythm that could be 
  relied on with absolute certainty.*3 Reconciling the cases on removal 
  was a struggle.
      In 1990 the Fourth Department began to clarify the blurry picture 
  that had developed. In Wodka v. Wodka*4 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. It held that the 
  standard ultimately to be applied steadfastly remains the ``best 
  interests of the child'' when all of the applicable factors are 
  considered.
      In earlier columns*5 on this subject, we concluded 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 
  if the parent having visitation 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 had been an ongoing 
  meaningful relationship with the noncustodial party or parent, the 
  interests of the child and such parent are enhanced. This standard 
  continues.
  
  Guidelines Provided
  
      Just when it seemed hopeless and that a workable solution for 
  attorneys would ever be found along came Radford v. Propper,*6 The 
  Second Department in 1993 defied the claim ``it can't be done'' by 
  providing ``some guidelines that may be utilized in any relocation 
  case.'' It 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. 
  [citations omitted]
      The three-prong test, established by Radford has been consistently 
  followed,*7 becoming the relocation ``bible'' in assessing the equities 
  in cases. The test is (1) Would the proposed move effectively deprive 
  the non-custodial parent of frequent and regular access to the child? 
  If not, the move will be allowed; (2) If so, are there exceptional 
  circumstances permitting the relocation? and (3) If there are 
  exceptional circumstances is the relocation in the ``best interest'' of 
  the child?
  
  Adoption in the Departments
  
      In the year-and-a-half that has passed since Radford v. Propper, it 
  appears that other Appellate Departments are adopting its rule. In 
  Rouch v. Rouch*8 the First Department reversed an order of the Supreme 
  Court, which among other things, granted permission for the mother to 
  move the custodial residence to New Haven, Conn., from Manhattan. The 
  parties' 1992 separation agreement provided that for so long as the 
  husband resided in the Radius Area, the Wife agreed not to remove the 
  residence of the children from the Radius Area without first securing 
  the written permission of the Husband or an order of a court of 
  competent jurisdiction of the State of New York. The father worked in 
  Manhattan and structured his work life so as to have the flexibility to 
  maintain his active involvement in his children's lives. The mother was 
  enrolled as a studentin Pace University Law School in White Plains, and 
  there was no issue of economic necessity that would constitute an 
  exceptional circumstance justifying the move. The Supreme Court held 
  that the mother did not have to prove the existence of exceptional 
  circumstances because the move to New Haven is a ``reasonable 
  distance'' that ``will amount to little if any disruption in the 
  father's relationship with the children.'' The Appellate Division 
  rejected this conclusion, holding that any fair reading of the record 
  must lead to the conclusion that the hour-and-45-minute train ride to 
  New Haven would disrupt the substantial involvement of the father in 
  the daily lives of the children. It stated: Where there is a specific 
  agreement limiting the geographical location of the custodial residence 
  and the custodial parent applies for judicial relief from such agreed 
  upon terms, the applicant must not only show exceptional circumstances 
  warranting the change in the best interests of the children (***), but 
  the law also `` . . . requires that the interests which might justify 
  such a relocation by the custodial parent be balanced against the 
  noncustodial parent's fundamental human right to frequent visitation  . 
  . . .'' ***).
      The Appellate Division concluded, citing Radford v. Propper that 
  the Supreme Court's holding that the mother was not required to 
  demonstrate the existence of exceptional circumstances was `` . . . 
  erroneous as a matter of law  . . .'' and found that there was no 
  showing of exceptional circumstances that would warrant abrogation of 
  the geographical limitation in the best interests of the children. The 
  record clearly established that the father was an active parent whose 
  involvement in his children's lives was extensive. This involvement 
  during the week would be lost if the mother were permitted to move to 
  New Haven.
      The court weighed against this involvement the mother's reasons for 
  the proposed move, upon which the Supreme Court based its decision, 
  which was stated as the ability to live in a more suburban environment 
  where the children could enjoy trees and grass and live less structured 
  lives. The Appellate Division held that by not applying the exceptional 
  circumstances test, the Supreme Court improperly avoided the 
  requirement of balancing the rights and interests of both parents in 
  determining what would serve the ``best interests'' of the children.
  
  The `Radford' Rule
  
      During 1994 three cases decided by the Third Department indicate 
  that it has adopted the Radford rule. In Raybin v. Raybin*9 the 
  parties' 1988 agreement, which survived their 1989 divorce, provided 
  for, among other things, joint legal and physical custody of the 
  children, residence in the same school district, and, if either party 
  moved from the ``area,'' the other party would obtain primary physical 
  custody of the children.
      The petitioner remarried in October 1991 and lost his position when 
  IBM closed its Glendale Lab in Broome County. Petitioner was asked by 
  IBM to transfer to Westchester County. He accepted the transfer and 
  purchased a residence in New Fairfield, Conn. In August 1992, after 
  petitioner applied to Broome County Family Court for permission to 
  relocate the children to Connecticut, the parties entered into a 
  stipulation, reduced to an order, which provided for joint custody with 
  primary physical custody in petitioner and a fixed schedule of 
  visitation for respondent.
      In January 1993 petitioner learned that his job in Westchester 
  County was being eliminated, and he accepted a position with the 
  company, at the same rate of pay, in Boca Raton, Fla. Petitioner never 
  sought other employment with IBM outside of Westchester County or with 
  any other company. In March 1993, he commenced a proceeding to modify 
  visitation based on his impending relocation to Florida. Petitioner, 
  the children and their stepmother relocated to Florida in early July 
  1993.
      Respondent cross-petitioned to prevent petitioner's relocation and 
  to modify custody. At the fact-finding hearing, a court-appointed 
  psychiatrist refused to give an opinion about what was in the 
  children's best interests but did say that continuity of care was a 
  positive thing. The Law Guardian in addressing ``best interests'' 
  stated that the continuity factor tipped the scales in favor of 
  allowing the move. The Appellate Division reversed the Family Court, 
  which found, among other things, that petitioner showed extraordinary 
  circumstances and that it was in the best interests of the children to 
  relocate with petitioner to Florida.
      In its opinion the court stated that in a ``recent case involving 
  relocation''*10 it had reviewed the pertinent law and quoted from it: 
  [A] geographic relocation which substantially affects the visitation 
  rights of the noncustodial parent gives rise to the presumption that 
  ``such relocation is not in the child's best interest'' (***). The 
  presumption may be rebutted ``upon a showing of exceptional 
  circumstances by the relocating parent'' (***). The emerging trend 
  which justifies relocation requires proof that the move is necessitated 
  by economic necessity rather than economic betterment or mere economic 
  advantage * * * (***) citations omitted] [emphasis in original]).
      The exceptional circumstances standard may include ```exceptional 
  financial, educational, employment, or health considerations * * * 
  which necessitate or justify the move' (***). Only when the custodial 
  parent has made a sufficient showing of exceptional circumstances will 
  the focus shift to the standard of whether the best interests of the 
  children will be furthered by the move (id.).'' [citations omitted]
  
  Exceptional Conditions
  
      This is the same as the rule enunciated in Radford v. Propper. The 
  court then went on to state that the primary issue was whether 
  petitioner had sustained his burden of demonstrating exceptional 
  circumstances to justify his relocation, and that ``this case, like 
  every other custody case involving relocation, must be decided on its 
  own facts.'' Initially, it noted that ``  . . . the record clearly 
  establishes that respondent has taken full advantage of her visitation 
  rights with her daughters and has maintained an enriching and 
  meaningful relationship with them (see, Matter of Radford v. Propper, 
  190 AD2d 93, 102).'' 
      It concluded that the relocation to Florida would harm the 
  children's best interests, for they would be deprived of meaningful 
  access to their mother. It rejected petitioner's argument that his move 
  was justified by reason of economic necessity absent proof in the 
  record to support his claim that no other position within or without 
  IBM was available. It held that were it to accept petitioner's 
  relocation without compelling proof of the need therefor, it would be 
  sanctioning all employment-related transfers based on nothing more than 
  the perception that nonacceptance will jeopardize a custodial parent's 
  current income.
      In MacCue v. Chartier,*11 the mother who had married her fiance and 
  sold her business sought to relocate from Saratoga, N.Y., to South 
  Carolina. Upon learning of her proposed move, respondent father filed a 
  petition to prohibit her from removing the child from New York. Family 
  Court found that the child's best interest would best be served by 
  remaining with the mother and found that she demonstrated exceptional 
  circumstances and that the move would be in the best interest of the 
  child. It was undisputed that in the last three-and-a-half years the 
  father had missed only one weekend of visitation. The Appellate 
  Division, Third Department, quoting from Matter of Raybin v. Raybin, 
  stated that its rule had now been well settled: It is now will settled 
  that when a custodial parent seeks a permanent move which will 
  substantially affect the visitation rights of the non-custodial parent 
  a presumption arises that ``such relocation is not in the child's best 
  interest'' (***). To rebut this presumption, the custodial parent bears 
  the heavy burden of showing exceptional circumstances to justify the 
  move (***). Such rule would not apply where relocation is not so 
  distant as to deprive the noncustodial parent of regular and meaningful 
  access, even though the distance may result in a decrease in the 
  frequency of visitation (***).''
      In determining whether the proposed move would deprive the 
  respondent of regular and meaningful access to the child the court 
  noted the Family Court found that respondent had a meaningful 
  relationship with the child. It further found that the distance between 
  New York and South Carolina was substantial and that in light of the 
  visitation previously enjoyed by respondent, relocation from New York 
  to South Carolina was so distant as to deprive him of regular and 
  meaningful access to the child.
      The issue thus became whether petitioner sustained her burden of 
  demonstrating exceptional circumstances to justify relocation. While 
  Family Court found that exceptional circumstances had been proven, the 
  court noted ``the emerging trend which justifies relocation requires 
  proof that the move is necessitated by economic necessity rather than 
  economic betterment or mere economic advantage.''
      In reviewing the record before it, the court found that, 
  notwithstanding petitioner's training in the areas of cosmetology and 
  nursing, she voluntarily sold her business and never attempted to seek 
  other employment opportunities in this state. It further noted that 
  while she now earned about $600 per month at her new employment in 
  South Carolina, she testified that she earned the same amount here and 
  was doing the same kind of work. Petitioner proffered no other 
  testimony concerning exceptional financial, educational or health 
  considerations that might necessitate or justify the move.
      The court found that petitioner's decision to move to South 
  Carolina was a voluntary one motivated by purely personal reasons and 
  did not demonstrate the requisite exceptional circumstances to overcome 
  the presumption that relocation was not in the child's best interest. 
  The court stated that: ``Since petitioner, as the custodial parent, has 
  not made a sufficient showing of exceptional circumstances, there 
  remains no need to determine whether the best interest of the child 
  will be furthered by the move.
  
  The Benchmark
  
      In Bennett v. Bennett,*12 the former wife, sought to move 180 miles 
  from Broome County to New York City to pursue her educational goals. 
  Petitioner and respondent were divorced in 1986 and had two children. 
  Respondent was granted custody of the children and lived in Broome 
  County. Petitioner resided in Broome County and had regular visitation 
  with the children, which included alternating weekends, alternating 
  Tuesday and Thursday week nights, four weeks in the summer and various 
  holidays. While studying for a degree in criminal justice at Broome 
  County College, respondent developed an interest in forensic 
  psychology. She was accepted in such a program in John Jay College of 
  Criminal Justice in New York City and desired to relocate there with 
  the children for at least three years to attend that college. 
  Petitioner opposed the relocation contending that the move would 
  significantly affect his visitation.
      Family Court found that respondent failed to show exceptional 
  circumstances and prohibited her from removing the children's residence 
  from the Sixth Judicial District. Respondent argued on appeal that she 
  was not required to demonstrate exceptional circumstances as the 180-
  mile move from Broome County to New York City was not a distant one. 
  She relied on cases in which relocation by a custodial parent was 
  permitted without a showing of exceptional circumstances even though 
  the geographic distance was greater than that which she proposed. The 
  Appellate Court affirmed in reliance upon Raybin and Radford. It held 
  that: The benchmark against which applicability of the relocation rule 
  is measured is meaningful access, i.e., the ability of a noncustodial 
  parent to continue to maintain a close and meaningful relationship with 
  his or her children (see, Matter of Lake v. Lake, supra; see also, 
  Matter of Raybin v. Raybin, supra), and not when a particular numerical 
  distance is exceeded (see, Matter of Radford v. Propper, 190 AD2d 93, 
  597 NYS2d 967; Murphy v. Murphy, supra). Each case must be decided on 
  its own facts and the determination must take into account other 
  factors such as travel time, the burdens and expense involved in 
  traveling *** and the involvement of the noncustodial parent in the 
  lives of his or her children'' (Matter of Radford v. Propper, supra, at 
  100, 597 NYS2d 967). Neither is the relocation rule automatically 
  triggered whenever a proposed move requires a change in a noncustodial 
  parent's customary pattern of frequent contact (see, Matter of Lake v. 
  Lake, supra, 192 AD2d at 753, 596 NYS2d 171).
      As it was clear that petitioner would not enjoy the same level of 
  weekly involvement with the children if they were living in New York 
  City, the Appellate Court found that: ``the relocation would 
  substantially disrupt petitioner's ability to continue a close and 
  meaningful relationship with his children. Therefore, respondent had 
  the burden of establishing exceptional circumstances, which she failed 
  to do.''
  
  
      (1) 1982, 55 NY 89, 447NYS2d 893, 432 NE2d 765.
      (2) Courten v. Courten (1983, 2d Dept.) 92 AD2d 579, 459 NYS2d 464; 
  Daghir v. Daghir (1982) 56 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.
      (3) 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.
      (4) 1990, 4th Dept., 168 AD2d 1000, 565 NYS2d 354.
      (5) See Freed, Brandes and Weidman, ``Relocation: A Child's 
  Dilemma,'' New York Law Jouranl, Dec. 31, 1991, p. 3, col. 1; Branes 
  and Weidman, ``The Relocation Dilemma Revisited,'' NYLJ, Nov. 23, 1993, 
  p. 3, col. 1.
      (6) Radford v. Propper (2d Dept., 1993) 190 AD2d 93, 597 NYS2d 967.
      (7) The rule has been followed in all Second Department cases 
  decided since then. See Amato v. Amato, 202 AD2d 458, 609 NYS2d 51 (2d 
  Dept., 1994); Lavane v. Lavane, 201 AD2d 623, NYS2d (2d Dept., 1994); 
  Acevedo v. Acevedo, 200 AD2d 567, 606 NYS2d 307 (2d Dept., 1994); 
  Temperini v. Berman, 199 AD2d 399, 605 NYS2d 363 (2d Depte., 1993);  
  Moorehead v. Moorehead, 197 AD2d 517, 602 NYS2d 403 (2d Dept.,1994).
      (8) ---- AD2d ----, NYS2d (1st Dept., 1994).
      (9) ---- AD2d ----, 613 NYS2d 726 (3d Dept., 1994).
      (10) See Hathaway v. Hathaway, 175 AD2d 336, 572 NYS2d 92 (3d 
  Dept., 1991).
      (11) ---- AD2d ----, 617 NYS2d 544 (3d Dept., 1994).
      (12) ---- AD2d ----, 617 NYS2d 931 (3d Dept., 1994).
----------------
Joel R. Brandes and Carole L. Weidman have law offices in New York City 
and Garden City. They co-authored, with the late Doris Jonas Freed and 
Henry H. Foster, Law and the Family, New York (Lawyers' Co-Operative 
Publishing Co., Rochester, N.Y.) Mr. Brandes and Ms. Weidman coauthor the 
annual supplements.
----------------
Included graphic: Photos of authors.