Opinion
164473
02-01-2019
In the MATTER OF a CHILD CUSTODY PROCEEDING UNDER ARTICLE 6 OF the FAMILY COURT ACT Dean, Petitioner, v. Adjei, Respondent.
Ava Gutfriend, Esq., Bronx, New York, for Petitioner Stan Idehen, Esq., Bronx, New York, for Respondent Elizabeth Wilder, Esq., Children's Law Center, Bronx, New York, for the Subject Children
Ava Gutfriend, Esq., Bronx, New York, for Petitioner
Stan Idehen, Esq., Bronx, New York, for Respondent
Elizabeth Wilder, Esq., Children's Law Center, Bronx, New York, for the Subject Children
Aija M. Tingling, J.
Petitioner, mother of the subject children, filed this petition pursuant to Article 6 of the Family Court Act, seeking to relocate out of the jurisdiction with the subject children. Respondent father contests Petitioner's relocation request. Attorney for the children, A.A. (01/31/06) and A.A. (12/16/10) does not support the Petitioner's request to relocate.
Trial was held and testimony was taken on June 13, 2018, June 28, 2018, July 9, 2018, July 30, 2018 and September 4, 2018. The court also conducted an in-camera interview of both children on August 29, 2018.
Summary of Arguments:
Petitioner seeks to relocate to Coral Springs, Florida with the children, where her fiancé resides and works as a law enforcement officer. Petitioner contends that if allowed to relocate to Florida she will have better job opportunities. Additionally, the children will be provided with a better standard of living in a low crime area, better school choices and extracurricular activities that are not currently available to them in New York. Petitioner further contends that the children will be able to continue their relationship with Respondent by having monthly weekend visits, holiday parenting time, extended summer parenting time and daily phone contact via Facetime.
In opposition, Respondent contends that it is not in the children's best interest to relocate to Florida. Respondent argues that relocation will be detrimental to the subject children and have a negative impact on his parenting time with them. Respondent also contends that the children have had very little interaction with Petitioner's fiancé, and that Petitioner has no familial support in Florida. Lastly, Respondent contends that Petitioner failed to establish or provide proof that relocating to Florida will improve her own economic situation and quality of life or that of the subject children.
Attorney for the child (AFC) also opposes Petitioner's request to relocate to Florida. On behalf of the children, the AFC argues that Petitioner failed to provide any evidence that the relocation would benefit the children emotionally, economically or educationally. AFC also contends that the relocation would have a significant adverse impact on the children's relationship with Respondent as well as their extended family who reside in New York. Further, the older child does not want to relocate, which has remained his position throughout the pendency of this case.
Factual Background
The parties share joint legal custody of the subject children with Petitioner having primary physical custody, per a divorce decree and stipulation of settlement dated October 20, 2016. Respondent has parenting time with the subject children on alternate weekends, Friday to Sunday. The stipulation does not set forth a schedule for extended holiday or summer parenting time.
Petitioner's Testimony
Petitioner seeks to relocate with the children to Coral Springs, Florida, where her fiancé of two years resides. Petitioner testified that her fiancé is employed as a law enforcement officer in North Miami, Florida. It would be difficult for him to relocate to New York because he is over the age requirement to obtain law enforcement position here. She also testified that her fiancé has not searched for employment in law enforcement outside of the New York metropolitan area and Westchester County areas. He also has not searched for any employment outside of the law enforcement field.
Two years as of the date of trial.
Petitioner works as an associate at a residential facility for children with trauma and behavioral issues. She recently received her bachelor's degree and is currently enrolled in a master's program in New York. During the week, the maternal grandmother assists Petitioner with caring for the children after school until Petitioner gets home. Petitioner testified that Respondent has never offered to pick the children up from school.
In Florida, Petitioner would keep her home in New York, a condominium, and continue to pay the mortgage, with the possibility of renting it out at a later time. Petitioner also intends to continue employment with her current job, work remotely from home until she can obtain a new job in a teaching position. This would also allow her to be home afterschool when the children are released from school. Petitioner will continue her master's studies, having been accepted into master's degree program at Barry University in Miami, Florida. The master's classes require physical attendance on Tuesday and Thursday evenings between 6pm and 8:30pm, during which time her fiancé would care for the children. Petitioner also testified that she toured a few schools for the children in the Florida but has not settled on any one school in particular.
Petitioner testified that the subject children are familiar with her fiancé as he comes to visit in New York and vice versa. Initially, Petitioner testified that she was unsure how many times her children have met him but during later testimony, Petitioner testified that the children met her fiancé five times; three times in Florida and twice in New York. The children have slept under the same roof as Petitioner's fiancé four times. Petitioner testified that her fiancé has a two-bedroom apartment and when the children stayed there, they slept in the living room on an air mattress.
Petitioner admitted that she has no relatives in Florida, but testified she has relatives in Kingsland, Georgia, which is approximately three hours from Jacksonville and Jacksonville is a half hour from Coral Springs. She further testified that the maternal grandmother also intends to relocate to Kingsland, Georgia sometime in the future. Petitioner does not believe relocating the children to Florida with no familial support is detrimental to them because the children can visit with their family frequently at Petitioner's own expense.
Since the entry of the divorce decree, Petitioner testified that Respondent has been consistent with his alternate weekend parenting time with the subject children. However, Respondent also works on Saturdays and Sundays from approximately 7am to 3pm to support the children and she is unsure who cares for them while he is at work. Petitioner further testified that Respondent has never requested any additional time with the children on weekdays, weekends, school breaks or holidays and rarely spends time with them during the week. Petitioner testified that in the past she has offered Respondent additional parenting time which he rarely agrees to.
Petitioner testified that she attempted to discuss the relocation with Respondent, however they do not communicate verbally due to the conflict between them. Instead, Petitioner sent Respondent a text message during the summer of 2017 indicating her desire to relocate with the children. According to Petitioner, Respondent denied her request to relocate stating that the children can remain in New York with him and Petitioner can relocate.
If granted permission to relocate, Petitioner would agree to Respondent having parenting time with the children during the holidays, summer, school breaks and one weekend per month or during a three-day weekend, all at her own expense. Petitioner testified this agreement and arrangement would provide Respondent with more time than he currently has with the children.
Petitioner is aware that her oldest child (age 12) does not wish to relocate to Florida. She conceded that it would be traumatic for him, but that he would eventually come around to the move. The youngest child (age 7) has expressed both a desire to relocate and a desire to remain in New York.
Respondent's Testimony
Respondent testified that he is employed as a New York City Housing Authority (NYCHA) community coordinator and works during the week from 9am to 5pm; sometimes 10am to 6pm. On the weekends, Respondent works a second job as a security guard from 7am to 1pm. In addition to his court ordered parenting time, Respondent testified that he also supports the children by making biweekly child support payments, maintaining medical and dental coverage for the children, and paying for their mobile device bills.
Respondent testified that he spends a lot of time with the children. He has parenting time with the children alternate weekends and shares a great relationship with them. While at work on Saturdays and Sunday from 7am to 1pm, the paternal grandmother or Respondent's nephew will care for the children. When Respondent returns home from work, he and the children do various activities such as go to the movies, the park or restaurants. Whenever Petitioner goes on vacation or asks Respondent to take the children, he does. He also takes the children to their dental appointments and occasionally to their doctor's appointments.
Respondent testified that the oldest child is enrolled in a Saturday morning tutoring program. Respondent's parenting time with him does not commence until Saturday after his class to ensure he gets to the class on time, which is closer to Petitioner's home.
Respondent testified that he had been in contact with the oldest child's school regarding his grades and failing classes. He testified that when the older child was failing in school, he requested to have the child live with him in order to help increase his grades but following a disagreement, Petitioner declined. He testified that he would love to have more time with the children, however, based on his relationship with Petitioner, he strictly follows the court order. Respondent testified that he does not request additional time with the children because in the past Petitioner would always deny his request.
Respondent testified that he is uncomfortable with the children relocating to Florida to live with a man he does not know. Respondent has never met Petitioner's fiancé and was not aware of him until this petition was filed. Initially, Petitioner told him she was relocating to Florida alone with the children. Admittedly, when he found out she intended to relocate with the children, he told her she could go but to leave the children with him. Respondent is willing to keep the children full time if Petitioner seeks to relocate with her fiancé. Respondent resides in a two-family home with his two nephews. Respondent resides on the top floor which has three bedrooms, one and a half bathrooms and a separate entrance. Respondent testified that if the children were to reside with him, they would have their own bedrooms.
Analysis:
"A parent seeking leave to relocate with a child bears the burden of establishing by a preponderance of the evidence that the proposed move would be in the child's best interests." Matsen v. Matsen , 77 N.Y.S.3d 127 (2nd Dept. 2018) ; see also, Tropea, supra; see Matter of Caruso v. Cruz, 114 AD3d 769, 771 (2nd Dept. 2014) ; see Matter of DeCillis v. DeCillis, 128 AD3d 818, 819 (2nd Dept. 2015) ; see Matter of Doyle v. Debe, 120 AD3d 676, 680 (2nd Dept. 2014).
The Court of Appeals in Tropea eliminated the three-step meaningful access exceptional-circumstance analysis, holding that:
"in determining whether relocation is appropriate, each request of a custodial parent to relocate the child must be considered on its own merits with due consideration of all the relevant facts and circumstances and with predominant emphasis being placed on what outcome is most likely to serve the best interests of the child." "in the end, it is for the court to determine, based on all of the proof, whether it has been established by a preponderance of the evidence that a proposed relocation would serve the child's best interest." Tropea v. Tropea, 87 NY2d 727 (Ct. App. 1996) ; see also Matsen at 129; Alaire K.G. v. Anthony P.G. , 925 N.Y.S.2d 417, 419 (1st Dept. 2011) ; see also Ceballos v. Leon , 21 N.Y.S.3d 353, 354 (2nd Dept. 2015)
Factors the court may consider include but are not limited to: (1) each parent's reasons for seeking or opposing the move, (2) the quality of the relationships between the child and the custodial and noncustodial parents, (3) the impact of the move on the quantity and quality of the child's future contact with the noncustodial parent, (4) the degree to which the custodial parent's life and child's life may be enhanced economically, emotionally and educationally by the move, and (5) the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements. see Tropea at 740—41; see Matsen at 129; see Matter of Caruso v. Cruz, 114 AD3d 769 (2nd Dept. 2014) ; see Matter of DeCillis v. DeCillis, 128 AD3d 818 (2nd Dept. 2015).
In cases where the court has granted relocation, the Petitioning party has shown great detail of the benefits of relocation to the child, economically, educationally and emotionally. For example, in Matter of C.F. v. A.S. , 61 Misc 3d 1209(A) (NY Fam. Ct. 2018), Petitioner presented evidence of the apartment complex where she intended to move, along with photographic evidence demonstrating its comparison in space with her current living arrangements. Petitioner also presented evidence of the school in Edison New Jersey, where she intended to enroll the subject child. Petitioner further demonstrated the economic impact of the move and its improvement of her financial status in eliminating the costs of the subject child's private school education and affording her the ability to sustain full time employment. Id. Moreover, the Petitioner demonstrated that move would not substantially interfere with the Respondent father's liberal parenting time with the subject child. In granting the relocation request, the court found that the mother provided credible testimonial and documentary evidence demonstrating by a preponderance of the evidence that relocation was in the best interest of the child and herself.
In Davis v. Ogden , 109 AD3d 539, 539—40 (2nd Dept. 2013), the court found that the mother's relocation to Florida would be in the best interests of the children. The court credited the mother's testimony at trial that, if she were permitted to relocate with the children to Florida, the children's quality of life would be significantly improved economically because the cost of living would be less than it is in New York, where she was struggling financially, and the mother would have family members in the vicinity of her new home to offer her support. Further, the court held that the mother was the children's primary caregiver, and that the father was minimally involved in the children's extracurricular activities, did not communicate with their teachers, did not schedule or attend their medical appointments, and he rarely initiated phone contact with them.
In contrast, courts have consistently declined to grant relocation where the Petitioning party has failed to demonstrate or provide sufficient evidence how relocation is in the best interest of the children economically, educationally and emotionally and will not substantially interfere with the non-custodial party's parenting time.
In Sylvain v. Paul , 68 AD3d 883, 884, 890 N.Y.S.2d 624 (2nd Dept. 2009). Petitioner mother sought to relocate to Florida where her new husband resided and worked citing economic necessity and better school choices for the subject child. The court found the record lacked evidence supporting mother's claims that she had greater possibility of gaining employment in Florida and that schools in Florida were better than those in New York. The mother's desire to move to Florida to live with her new husband, who resided in Florida, where he was employed as truck driver, was not a sufficient justification to warrant relocating the subject child away from his father and father's extended family, with whom child had strong, loving relationships.
See also, Salena S. v. Ahmad G. , 152 AD3d 162, 58 N.Y.S.3d 35 (1st Dept. 2017). The Petitioner mother sought to relocate with parties' child to Florida based on economic hardship, and to provide safer environment for the subject child, which was denied. The record established that the mother's plans to relocate were tenuous at best, as she had not determined to what city she intended to move, nor did she did have any job offers or extended family in Florida, making it unlikely that her financial situation would improve upon relocation. Further, she had not established a plan to enroll the child in any particular school. The court further determined that the parental relationship between father and child would be interrupted as the father worked two jobs, with limited schedule flexibility making it difficult for him to visit child in Florida or for extended visits in New York. Further, the record lacked evidence as to how travel for parenting time with the father would be financed.
In J.C. v. S.G.M. , 29 Misc 3d 1203(A), 958 N.Y.S.2d 308 (2010), Petitioner mother sought to relocate from New York to North Carolina with the subject child, infant daughter, also citing economic necessity and better school choices for the subject child. The fact-finding hearing revealed that the mother's husband made minimal attempts to secure employment in New York and only looked for work within the village limits where the parties resided. The mother, who was employed, quit her job and had not secured any employment in North Carolina.
Additionally, the mother owned a home with a mortgage, which she did not intend to list for sale. The court found this questionable as she intended to leave the home she owned in New York to move to a rental property with an option to purchase in North Carolina. The court determined that there was no economic necessity for the relocation, as no proof was presented to show the comparison of food costs, utilities, or other day to day living expenses. Id. Moreover, no evidence was presented that the child's educational opportunities were better in North Carolina, than in New York. Id. The court found that the mother failed to establish by a preponderance of the evidence that relocation was in the best interest of the subject child, denying her petition for relocation.
Discussion
The court lacks sufficient information and details to determine that relocation to Florida is in the best interest of the children. Petitioner's testimony focused more on her ability to maintain her current standard of living if allowed to move. However, by continuing in her same employment, continuing her master's studies and retaining her current home and continuing to pay the monthly mortgage while living in Florida, the record is devoid of evidence that Petitioner will derive a financial or educational benefit from the move.
See Salena S., supra. See also Friedman v. Rome , 46 AD3d 682, 683 (2nd Dept. 2007) ("Although the mother sought to relocate to meet the demands of her second marriage, which are "valid motives", the mother failed to demonstrate that her reasons justify "the uprooting of the children from the only area they have ever known, where they are thriving academically and socially, and where a relocation would qualitatively affect their relationship with their father.")
As for the children, Petitioner presented little to no testimony or evidence of the benefits the children will derive from relocating to Florida. Petitioner failed to present any testimony or evidence concerning the adequacy of the home where the children would reside, how it compares to the home where they have lived their entire lives or proof that the neighborhood in coral Springs is safer than the neighborhood where they currently reside. Petitioner did not identify any schools for the children to attend, having merely "toured" some schools in Florida. Petitioner did not present any evidence that school options in Coral Springs, Florida are better than school options in New York. While both parties testified that A.A. (age 12) was struggling in school at one point, both parties also testified that his grades improved with additional weekend tutoring. Petitioner did not identify any extracurricular activities for the children in Florida or activities that are not available in New York or are superior to those available in New York.
See Hirschman v. McFadden , 137 AD3d 1612, 1613 (4th Dept. 2016) (While the mother testified that the child could receive a superior education upon relocation, "she failed to offer any proof from which the court reasonably could conclude that the Florida school system was a significant improvement over the school system in New York").
Further, the record makes clear that Respondent is not an absent father. Both Petitioner and Respondent credibly testified that since the separation, Respondent has had the children alternate weekends, takes the children to the dentist, sometimes the doctor, is in contact with the school and exercises additional parenting time with Petitioner goes out of town. Respondent further testified that he works two jobs to provide for the subject children, which would make it difficult for him to travel to Florida to visit.
See Salena S, Id.
Petitioner's request to relocate will significantly impact Respondent's parenting time and relationship with the subject children. Petitioner has offered to bear the costs of travel for the two subject children for parenting time with Respondent in New York during the summer, holidays, school breaks, and one weekend per month. However, as pointed out by the attorney for the children, no evidence was presented how these accommodations will be afforded.
See Yamilly M.S. v. Ricardo A.S. , 137 AD3d 459 (1st Dept. 2016) (Parties agreed to joint custody with primary custody to the mother. The court found that any quality-of-life advantage realized would not necessarily outweigh disruption in children's relationship with the father, where the father had fully exercised his visitation rights and relocation would limit the amount and quality of his contact with children and disrupt their relationship, even with liberal vacation visitation.
Petitioner further testified that she has no family in Florida, only her fiancé. The children have spent a total of four overnights with Petitioner's fiancé, twice in Florida and twice in New York.
See Salena S., Id.
Finally, the subject child A.A. (age 12) has consistently expressed his desire to remain in New York, which Petitioner has acknowledged and while conceding it may be traumatic for him, does not believe it will be detrimental to him in the long run.
See O'Connor v. Dyer , 18 AD3d 757 (2nd Dept. 2005) ("While the express wishes of children are not controlling, they are entitled to great weight, particularly where their age and maturity would make their input particularly meaningful.")
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Based on the testimony presented, there does not appear to be any plan in place for the children's educational, emotional or physical needs if allowed to relocate. The record demonstrates that Petitioner seeks to relocate because her fiancé could not secure employment in New York, while she would be able to maintain her current New York lifestyle, making her motive for relocating appear self-serving and not in the best interest of the children.
Holding
In due consideration of all relevant factors and evidence presented in this matter, this court finds that Petitioner has not demonstrated by a preponderance of the evidence that the proposed relocation with the subject children to Florida is in the children's best interest. This court also takes into consideration the position of A.A. (age 12) to remain in New York and close to Respondent father based on his age and maturity level. The subject child A.A. (age 8) has expressed a desire to remain in New York and relocate to Florida; however, based on her age and maturity level, the court is not inclined to give great weight to her position and the court will not separate the children. Finally, the court finds that relocation with the subject children would substantially inhibit and interfere with Respondent's parenting time. Thus, relocation is not in the best interest of the children at this time.
IT IS HEREBY ORDERED that the petition for modification and relocation is DENIED, without prejudice .