Opinion
66125
12-19-2018
Rochelle Rager, Petitioner, v. Joshua Ramsell, Respondent. Joshua Ramsell, Petitioner, v. Rochelle Rager, Respondent.
Rochelle Rager having appeared personally and by her attorney, Joseph Scalzo, Esq.; and Joshua Ramsell having appeared personally and by his attorney, Connie Lozinsky, Esq.; and the child having been represented by his attorney, Debra Rougeux, Esq.
Rochelle Rager having appeared personally and by her attorney, Joseph Scalzo, Esq.; and Joshua Ramsell having appeared personally and by his attorney, Connie Lozinsky, Esq.; and the child having been represented by his attorney, Debra Rougeux, Esq.
A petition having been filed on the 30th day of January, 2018 by Rochelle Rager (Mother), requesting permission to relocate with the child, R., to South Carolina; and a petition having been filed on May 4, 2018 by Joshua Ramsell (Father), requesting residential custody; and; and the matter having come on for a full hearing before this court and the court having held a Lincoln hearing with the child, who was present with his attorney; and the attorneys having submitted written memorandum for the court's consideration, the court now makes the following findings:
Pursuant to previous Family Court orders, the parties have joint custody and Mother is designated residential parent of R. Father has access every weekend and alternating weeks over the summer. Mother commenced the instant proceedings because she wants to relocate with R. to South Carolina. Mother has three other children who reside with their father in South Carolina, and her husband has already relocated with his daughter there. Father filed his petition in response, as he is opposed to R. moving to South Carolina. During the pendency of these proceedings, R. was initially home schooled to allow Mother to travel back and forth without him missing school. He has since been re-enrolled in public school in Niagara Falls.
Both parties testified at trial. Mother testified that she and Father resided in South Carolina when R. was born. The parties subsequently moved to Niagara Falls, but separated when the child was about 8 months old. The child has always resided primarily with Mother. Mother is married to Benjamin, who has already moved to South Carolina with his 10 year old daughter. Mother has three children, aged 16, 15 and 10, who reside in South Carolina. Mother testified that she has had to work hard to move from supervised access with her children to being in a position where she will regain residential custody of them. She stated that she has many family members there, as does Father. She has a job offer to manage a gas station. If her relocation petition were granted, R. would attend Fair Forest Elementary in Spartansburg County.
Mother indicated that if she were allowed to relocate to South Carolina, Father could have visitation access during all school breaks including the whole summer break. Mother also said that she would pay for all travel costs for the child associated with Father's access.
Mother expressed concern that Father has many people in his home. He currently lives with his girlfriend, her two sons, and his older son. Neither Father nor his girlfriend have a car, and they rely on taxis, busses, and walking to get where they need to go. She often transports the child for his visits. She said that when she first went to South Carolina to finalize plans for moving, she offered Father the opportunity to keep the child temporarily and he refused. She testified that's why she took R. out of school and began home schooling him. Mother wasn't aware at that time that the girlfriend's children were living there. She expressed concerns that Father is unable to provide financially for the child. He hasn't worked in many years and receives Social Security Insurance for bi-polar disorder. She said that in a recent child support hearing Father testified that his income has been reduced.
Mother said that the reason her ex-husband and her mother have custody of her other three children are because Father was assaulting her. She said Father has had issues with alcohol in the past. She also has concerns regarding his use of corporal punishment. She also expressed her belief that one of the girlfriend's children put his hands around R.'s neck, leaving marks.
Mother said that R. has always resided primarily with her. She is the one who takes him to doctor's appointments, she is the one that attends parent teacher conferences. She reiterated that she only made the decision to home school R. after Father refused to take temporary custody while she got settled in South Carolina. She re-enrolled him in the Niagara Falls school district before the end of last school year.
Father testified that he has three other children besides R. His son, Joshua Jr. has resided with him his whole life. His mother doesn't really see him much. He also has two daughters, but does not have custody of them. They live with their paternal grandfather. They have blackfan anemia, and require special care. He stated that he does not see these children very often, citing difficulties in getting to his father's home. Father resides in a two bedroom home with his girlfriend, her two children and Joshua, Jr, plus R. on the weekends. He said that her two children share a bedroom and his two sons share a bedroom. He indicated that he and his girlfriend sleep on the couches. He does not work but receives SSI for a mental health diagnosis.
Father stated that he has not been involved with R.'s schooling and medical care because Mother has kept him out of the loop. He does have independent access to the child's records, but said he didn't know where to look. He indicated that he is certainly capable of taking the child to appointments. He is currently responsible for all of his other son's medical appointments and school meetings. Father said that he has many family members here with whom the child has a very close relationship. He also testified that he now owns a vehicle.
Father said he has had issues with Mother being compliant with orders in the past. He fears that if she were to relocate to South Carolina, she wouldn't bring the child back here, regardless of what the order says. Father says he completed the Co-Parenting training that was ordered previously. He has also completed drug/alcohol evaluations and no treatment was recommended.
The leading case regarding relocation is Tropea v. Tropea, 87 NY2d 727 (1996), which this court will summarize in relation to the facts in the case at hand. The Tropea court stressed five factors in its analysis.
1. Respective Parent's Reasons for Seeking or Opposing the Move
Mother wants the relocation because her other children reside in South Carolina and she is finally in a position to have custody returned to her. Also, her husband has moved there already with his daughter. She also feels there are better economic opportunities for their family there. Father opposes the move because it will interfere with his current access schedule, thereby denying him meaningful access with the child.
2. The Quality of the Relationships between the Child and the Custodial and Non-Custodial Parents.
Mother has always been the residential parent of R. The parties resided together for only a short period of time after the child was born. Mother has been the primary caretaker as well, being the only parent to schedule medical appointments and deal with school issues. Father has always had access with the child, currently enjoying every weekend and alternate weeks over the summer. Mother has generally provided the transportation for Father's access periods as Father has never had a vehicle of his own.
3. The Impact of the Move on the Quantity and Quality of the Child's Future Contact with the Non-Custodial Parent
Mother has offered Father the entirety of the child's school breaks, including summer vacation. She has also offered to pay for the cost of R.'s transportation back and forth to New York from South Carolina. Father has indicated that he does not think Mother will follow through with any access schedule. However, it should be noted that Father has not missed any access periods with the child since Mother has been going back and forth between New York and South Carolina for the past year.
4. The Degree to Which the Custodial Parent and Child's Lives May be Enhanced Economically, Emotionally and Educationally by the Move
Mother testified that she has a good job waiting for her in South Carolina. Her husband is already residing in a three bedroom home with his 10 year old daughter, and R. would have his own room. Mother has extended family there, along with three older siblings of R. She has checked out the school where R. would attend if the move were allowed. R. wants to move to South Carolina with his mother. Father has consistently exercised access with R., but has never been his custodian. When offered the chance to keep him for an extended period of time while Mother got set up in South Carolina, Father turned her down. Father has not had any involvement with the child's education or medical care. Father pays minimal child support to Mother and receives SSI as his only source of income.
5. The Feasibility of preserving the relationship between the Non-Custodial Parent and Child through Suitable Visitation.
Mother has offered liberal extended access to Father, although there are long periods of time when they would go without seeing each other. She has also offered to pay for the total cost of transportation for Father's visits. Father does not trust Mother to honor the visitation once she is granted permission to relocate, but Mother has been responsible over the years for transporting the child for visits and has been compliant for the most part. Father does not work and would be able to spend maximum amounts of time with the child if he spent all of his school breaks here.
Based on the above factors, it would be in the child's best interest to relocate to South Carolina with Mother. Although the child does spend every weekend with Father, he has never resided with Father. Father has not demonstrated that he is prepared to take on the responsibility of caring for R. on a full-time basis. R. has never been outside of Mother's care for longer than a couple weeks at a time, while Father's every weekend access has only been in place for the past couple years. Mother has always been the primary caretaker for this child. Father contends that he didn't have the information regarding R.'s medical and educational matters, but did not indicate that he had ever requested it either. Mother has offered a plan for Father to spend significant periods of time with the child, with her providing the transportation. If the roles were reversed, Mother would not be able to spend the quality time over the child's breaks with him, because she works. Father has family in South Carolina, has resided in South Carolina, and has reason to visit there aside from his son relocating there. Mother's only ties to Niagara Falls at this time are that the father of her child is here.
The child has been enjoying his time in South Carolina and has enjoyed his reunification with his older siblings there, as well as his extended family.
And the court having searched the statewide registry of orders of protection, the sex offender registry, and the Family Court's child protective records, and no results having been found;
Based on the foregoing, it is hereby
ORDERED that the Father's request for residential is custody is denied; and it is further
ORDERED that Mother's petition is granted and she is granted permission to relocate with the child to South Carolina; and it is further
ORDERED that the parties shall continue to share joint custody and shall each have independent access to the child's educational and medical records and providers; and it is further
ORDERED that Father shall have access with the child every school break for a minimum of seven days, to include Christmas Day at least every other year; and it is further
ORDERED that Father shall have access for the child's summer vacation from the Sunday following the child's last day of school until the Friday preceding the child's first day of school; and it is further
ORDERED that the Mother shall be responsible for the costs of all transportation associated with the child's travel to Western New York for Father's access; and it is further
ORDERED that Father shall have such additional access with the child in South Carolina as agreed and arranged; and it is further
ORDERED that Father shall also have reasonable telephone and/or video call, such as Skype, access with the child as agreed and arranged.
This constitutes the final order of this Court. ENTER __________ Kathleen Wojtaszek-Gariano Family Court Judge