Opinion
V-06452-04/07A.
Decided January 4, 2008.
The petitioner in the above captioned matter filed a petition on August 21, 2007 seeking to modify a so-ordered stipulation signed by the parties and entered as an Order by Judge Freundlich on December 7, 2004. The Order granted the parties joint custody of the subject child, E. H. (d/o/b 3/23/00), and set forth a schedule of visitation for the father on alternate weekends and overnight each Wednesday. The father's petition requested an Order granting him sole custody of the child based upon an allegation that the mother had already moved to New Jersey without seeking permission of the father or the Court, thereby disrupting the prior Order of joint custody.
Patricia Ann Condon, Esq., Huntington, NY, Petitioner's Attorney.
Michael N. Klar, Esq., Carle Place, NY, Respondent's Attorney
Paraskevi Zarkadas, Esq., Smithtown, New York, Law Guardian
The respondent, through her attorney, thereafter filed a cross-petition seeking Court permission to relocate with the child to New Jersey. The Court bifurcated the hearing into two parts. The first matter the Court addressed was the mother's relocation application, since this was in fact the most important issue to address for the child and the parties. On October 5, 2007 the Court commenced the relocation trial and continued the trial on several subsequent dates until the mother completed her case on December 19, 2007. Upon the completion of the direct case, the father's attorney offered an oral motion to dismiss which the Court now addresses.
In order for the father's motion to dismiss to succeed, he must show that the mother failed to make a prima facie showing that relocation would be in the best interests of the child when viewing the factors set forth in the matter of Tropea v. Tropea 87 NY2d 727, 665 NE2d 145 . The factors set forth include; each parent's reason for seeking or opposing the move, the quality of the relationship between the child and 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 chid's life may be enhanced economically, emotionally, and educationally by the move and the feasibility of preserving the relationship between the noncustodial parent and the child through suitable visitation arrangements.
There were three witnesses called in support of the mother's relocation petition. The mother testified on her own behalf, the father was called as a witness and the child's step-father, David E. testified. Parenthetically, it should be noted that the Court did not conduct an in-camera interview with the child, determining that it would not be in the best interest of the child to subject him to the in-camera process if the mother could not establish a prima facie case for relocation. The undisputed facts are, that on December 7, 2004 the parties entered into an agreement which granted them joint custody of the subject child, with residential custody to the mother. A schedule of parenting time for the father was set forth. The agreement was so-ordered by Judge Freundlich, and the parties lived under the agreement until August 12, 2007, when the mother sent an email to the father (a copy of which was submitted as petitioner's exhibit No. 8) indicating that "effective immediately, the subject child will be residing in New Jersey". The Court notes that the move occurred only one month after the mother's marriage to David E., who testified that he was primarily a resident of New Jersey for the past 20 years, including at the time of his engagement to the mother.
The mother testified at length about her reasons for moving the child from his home in Commack, NY to the new home in Mountainside, NJ (86 miles from the home of the father, anywhere from 1 ½ to 3 hours drive each way). The theme throughout her testimony was that she would be able to provide a better standard of living for the child in Mountainside, NJ. To support this claim, she provided the Court with a layout of the home that was purchased on a cul-de-sac in Mountainside. The three bedroom, two bathroom home comes with a dining room, two car garage, living room, three season porch, recreation room, and central air. The living conditions are clearly an improvement from the one bedroom apartment that the mother and child rented from her step-father in Commack. The New Jersey home was purchased for $514,000 with annual taxes of over $6000. No evidence was presented to show that a similar home could not be found on Long Island other than the self-serving testimony of the mother indicating that she looked on Long Island for since 2005, and only found comparable houses in the $570-590,000 price range with approximately $9,000 annual taxes. The step-father also testified that housing on Long Island was more expensive than in New Jersey, but upon cross-examination it was learned that he merely relied on the what the mother told him about the real estate market on Long Island.
In addition to the improved living space, the mother testified that she was able to secure a new position with her employer, Computer Associates, that would enable her to work from a home office, thereby allowing her to be home when E.H. gets off the bus and increase the time she spends with E.H. . In order to secure this position, the mother testified that she had to be assigned to the New York City office of Computer Associates and that the company would not allow her to transfer to the New York City office if she lived on Long Island. No evidence was produced by the mother to verify this unusual office policy other than the mother's self-serving testimony.
The mother also testified that an additional factor in her decision to move, was the excellent schools in New Jersey and the presence of extended family. Once again, no evidence was presented to show that the new school district is better or worse than the child's previous district in Commack. The mother even testified that she would have been satisfied with the Commack, Smithtown, and Connetquot school districts on Long Island but she could not find a comparable home in those districts for just over a half-million dollars. With regard to extended family, the testimony was that the step-father, Mr. E., had several relatives in New Jersey and that the mother had a sister living in New Jersey with her fiancé' and 22 year old son. On the other hand the mother's step-father, aunt, two brothers and two other sisters all lived on Long Island as well as the father's extended family.
The remainder of the testimony presented by David E. and the mother focused on allegations that the father is a violent man with an uncontrollable temper. The mother testified that the move to New Jersey would allow some space between herself and the father which would be a benefit for the child as he would no longer be subject to fighting between his mother and father. In support of this position the mother testified to four incidents of domestic problems between the parties and one incident involving the father and step-father. The Court notes that three of the four incidents between the mother and father occurred prior to the parties agreed to joint custody in December 2004. First, sometime in October 2001, while the parties had been residing together, the parties were involved in a verbal altercation when the father threatened her and the police had to be called. The child, who was just over a year old, was present during the dispute but no arrests were made and there was no allegation of physical violence. The second incident the mother described was in November 2006. At that time the father was on his way to her home for a visit with the child. During a telephone conversation the parties agreed that the mother would bring the child to the curb for pick up. When the father arrived the child was not ready so the father had to go to the door. The mother testified that the father banged on the door in anger and threatened to knock the door in. The police were called, no arrests were made but the child did not go with the father for the visit. The third incident occurred sometime in 1998, two years prior to the child's birth. The police were called after the father grabbed the mother by the throat during a verbal altercation. The fourth incident occurred in the summer of 2001. At that time the father became involved in a verbal dispute with the mother and her sister. During the argument the father allegedly brandished a knife and threatened to "cut the throats" of both ladies. The police were not called and the dispute ended without physical violence. The final incident occurred in April 2007 between David E. and the father. Mr. E. testified that he was caring for the child while the mother was away on a business trip. Mr. E. took the child to his little league baseball game, the father was also in attendance. The father approached Mr. E. during the game and questioned where the mother was and when she would return. The father expressed his disapproval of the child care arrangement by telling Mr. E. that "this isn't going to fucking fly". Fifteen to twenty minutes later the father repeated his disapproval of the situation by repeating "this will not work". When the game ended the father, Mr. E. and the child were walking toward the parking lot and the father continued to express his anger with the fact that he was unaware of the mother's absence and the child being left in the care of her fiancé'. The father demanded that the child come home with him and threatened to crush Mr. E.'s skull if he did not allow the child to go. The father threatened Mr. E. more than ten times before Mr. E. yelled to the child "come on you are going with me". The father responded by throwing a lawn chair at Mr. E., hitting him in the leg. The father picked the chair up and threatened to swing it like a bat at Mr. E., at that time the police were called. The police interviewed all parties, no arrests were made and the child was sent home with the father.Mr. E. followed up with harassment charges and the matter was disposed of with an ACD.
While it is important for the Court to understand the reasons and benefits of the move to New Jersey, it is equally if not more important for the Court to examine the affect the move will have on the child's relationship with the noncustodial parent. In this matter there was little dispute that the father has been an active participant in the child's life since the Order of Joint Custody was signed in December 2004. The mother testified that he complied with his alternate weekend visits and his Wednesday overnight visits with the exception of two periods when he did not utilize his Wednesday overnights. The two periods of missed Wednesdays ran from September 2005 until June 2006 and September 2006 until March 2007. The father also visited with the child on alternate holidays and school recesses and even provided care for the child for weeks in the summer since he was not employed and mom had to go to work. The testimony of the witnesses indicated that until the mother picked up and moved the child to New Jersey, the parties were able to work together and agree to modifications of the stipulation without difficulty.
The testimony also indicated that the father was current on support and involved in all aspects of the child's development. The mother originally testified that the father was not current with child support and that there were arrears. Upon further questioning it was established that the father only owed $200.00 for child support, and that those arrears had accrued after she absconded with the child to New Jersey. Additionally, testimony was taken that showed the father attended a majority of the child's baseball games and even practiced with E.H. before the game started. The father also testified that he acted as a first base coach during some of the games. The father continued to testify that he went with the child to approximately ten doctor visits each year, attended the child's field day carnival, night concerts, science fairs and all daytime parent-teacher conferences. The reason he was absent from the nighttime parent-teacher conferences was that he would care for the child so that mom could attend. The father opined that he could not realistically maintain this level of involvement with the child if every baseball game, school activity and doctor appointment required him to drive 3-6 hours round-trip.
The mother admitted that the Wednesday overnight visits would have to be eliminated if she were to relocate but she felt that the time could be made up. The mother testified that she felt additional summer vacation and holiday visits would be fair consideration for the missed Wednesday overnights and that the father could still remain involved in E.H.'s life despite the distance. The mother went so far as to say she felt it was reasonable to expect the father to drive to New Jersey to watch the child's baseball games. David E. also offered his opinion that the father-son relationship could continue to flourish despite the distance. In support of his position Mr. E. indicated that he and E.H. were able to develop a strong relationship while Mr. E. was living in New Jersey and E.H. was living in Commack.
The Court is now faced with the question of whether the evidence, if viewed in a light most favorable to the mother, supports a prima facie case for relocation of the child from Long Island to Mountainside, New Jersey. The Court granted each counsel the opportunity to provide the Court with cases which support their respective positions and the Court has reviewed all cases provided. Based upon the standard set forth in Tropea and the evidence produced at trial, it is clear that the mother has not met her burden.
Initially, it is the Court's duty to determine the credibility of all witnesses who testify and give appropriate weight to the testimony based upon that finding of credibility. In this matter, the mother came before the Court after already purchasing a home in New Jersey where she intended to move the child without informing the father or the child that such a move was imminent. The father, who realized the mother was marrying a man who lived in New Jersey, inquired of the mother about a possible move stating that he would not consent to such action; she stated that no such move was contemplated and never sent any notice to him of the move until it was complete. More disturbing to the Court, the child was moved from his home in Commack while he was visiting with his father. The mother did not allow the child to take part in the move or even allow him to say goodbye to friends from his old residence. The mother literally picked up the child from a visit with his father and drove straight to New Jersey. When asked why she acted in such a manner, the mother stated that she relied on two portions of the stipulation and that she feared a violent reaction from the father. The mother testified that there was no language in the stipulation preventing her from moving out of state and that she was granted final decision making authority as the residential parent. The Court has reviewed the stipulation and the mother is correct that there is no express radius clause prohibiting relocation by the mother. But, it is important to note that this is in fact an Order granting joint custody, not an order of custody with visitation to the father. Joint custody entails more than just visiting with the child, it is assumed a joint custodian will be involved in all aspects of the child's life, a task that would be extremely difficult if the child resides hours away. Therefore, the Court finds that within the joint custody agreement, there is an implied radius clause that restricts the residential parent's ability to relocate without permission of the noncustodial parent or the Court. Similarly it is difficult for the Court to accept the mother's argument that she was entitled to relocate because she was the residential parent with final decision making authority. The portion of the agreement that provides final decision making authority is meant to be used in situations wherein the parents cannot agree on an issue concerning the child, after discussions regarding that issue. There were no discussions with the father concerning the move to New Jersey, despite the fact that the father attempted to address the issue with the mother in the letter dated January 2007. The mother unilaterally decided that the move to New Jersey would be in the best interest of the child. The mother also testified that she left without providing notice to the father because she was afraid that he would become angry and possibly come to her house to kick down the door. The mother's fear of the father was based upon only one prior incident of alleged physical violence that occurred in 1998, nine years ago. The Court also notes that throughout her testimony the mother was evasive when questioned by the father's attorney and continued to be evasive when the Court attempted to clarify some of her answers.
Although the Court finds that the mother was less than forthright in her testimony, the Court will not ignore the evidence presented that tends to show that she was in fact an excellent custodial parent. The child has spent a majority of his time in the mother's home and the mother has driven extra hours every day to bring the child back and forth to day care. The mother has prepared meals for the child, set up doctor and dentist appointments, went to any teacher conference that her schedule allowed and enrolled and drove the child in various other activities. With that being said, this is not a hearing to determine the mother's ability as a parent but to determine if it is in the child's best interest to relocate to New Jersey. In the matter of Huston v. Jones, 252 AD2d 502, 675 NYS2d 127 (1998), the Appellate Division overruled the lowers Courts decision allowing the mother to relocate with the child to Georgia reasoning that,
although the mother has been the primary custodial parent, both parents have a close and loving relationship with the child and have taken active part in his upbringing and well-being. Prior to the mother's move to Georgia, the parties lived close to each other, enabling frequent visitation. During this time, the child developed a strong and loving relationship not only with this father, but also with various members of the father's extended family, who also live in the area. Thus, under the totality of the circumstances, it cannot be said that the child's best interests are served by the relocation.
The facts in the present case mirror the evidence in the Jones matter in that the mother has been the primary care-giver for the child but there is clearly a strong bond between the father and child that, if broken, would cause harm to the emotional development of the child. Additionally, the father resides in a house with his mother and the child enjoys a bond with her that would also be severed.
In support of her position the mother cited the matters of Smith v. Hoover 24 AD3d 1096, 805 NYS2d 715, (2005), and Wisloh-Silverman v. Dono, 39 AD3d 555, 834 NYS2d 539, (2007), two cases wherein the Court allowed the sole custodian mothers to relocate with the subject children. The Smith matter is distinguishable from the present matter in that the evidence showed a "tumultuous and at times dangerous relationship" between the mother and father. The father had a history of alcohol abuse and violations of Orders of Protection, was limited to three hours of supervised visits with the child each week. Furthermore, the mother showed that her new husband would be able to earn more money in North Carolina with a family business enabling her to stay at home with the child, they would be able to buy a more spacious home in North Carolina and the move would provide a supportive extended family for the child. The present matter contains none of these factors. The mother's evidence of the father's violent nature does not rise anywhere near the level of the conflict in the Smith matter. There are no Orders of Protection between the mother and father, no violations of Court orders, no alleged substance abuse and certainly no limited supervised visits. Additionally, the mother failed to show that a comparable home could not be purchased for $514,000 on Long Island and the majority of the child's extended family is here on Long Island. The mother and Mr. E. also failed to provide any evidence to show that there are job opportunities in New Jersey that are unavailable in New York. In fact, Mr. E. will be commuting from Mountainside to New York City, a commute that is similar to the commute from Commack to New York City. Mr. E.'s testimony also raised concern about the stability of the mother's new job, which will enable her to stay home with the child. Mr. E. testified that the mother is merely an at-will employee and that the company regularly lays off employees following the December holiday season. The Wisloh-Silverman matter is also distinguishable in that the record showed that the mother, who was expecting a child, and her new husband were able to purchase a home in Pennsylvania, mortgage free, which would enable her to stay at home with the children and increase the child's quality of life. The testimony in this matter showed that the mother and Mr. E. purchased a home for $514,000 and had to take a mortgage out to pay for the sale. The same arrangement could be made with a bank on Long Island.
Based on the foregoing, it is hereby
ADJUDGED that the mother failed to present sufficient evidence to establish a prima facie case for relocation to New Jersey; and it is further
ORDERED, that the mother's petition requesting permission to relocate with the child to New Jersey is hereby dismissed; and it is further
ORDERED, that the parties are directed to appear before this Court for a continued trial with regard to the father's contempt petition and request for custody on January 4, 2008.