Opinion
Index No. 307163/16
05-08-2023
W.H., Plaintiff, v. L.H., Defendant
Counsel for Defendant Aronson Mayefsky & Sloan, LLP By: Allen E. Mayefsky, Esq. and Liza S. Camellerie, Esq. Counsel for Plaintiff Gallet Dryer & Berkey, LLP By: Kenneth S. Glasser, Esq. McLaughlin & Stern LLP By: Marcy H. Katz, Esq. Attorney for the Child By: Rosemary Rivieccio, Esq.
Unpublished Opinion
Counsel for Defendant Aronson Mayefsky & Sloan, LLP By: Allen E. Mayefsky, Esq. and Liza S. Camellerie, Esq.
Counsel for Plaintiff Gallet Dryer & Berkey, LLP By: Kenneth S. Glasser, Esq. McLaughlin & Stern LLP By: Marcy H. Katz, Esq.
Attorney for the Child By: Rosemary Rivieccio, Esq.
Ariel D. Chesler, J.
Introduction
The COVID-19 pandemic has impacted and changed each of us and the collective whole in ways both known and yet to be discovered. It has transformed mindsets, increased stress and depression for some, and forced reflection on life, death and priorities, especially for our children and the coming generations. None have been immune to these traumas and these thoughts, not even the most financially fortunate among us. But can the desires and preferences of a parent, even those brought on by a pandemic, support a relocation application without more? Why does the Court begin here? Because the context and backdrop of this relocation proceeding involves issues and concerns that arose during and perhaps because of the pandemic, and during our extended time of what Rent creator Jonathan Larsen presciently termed "virtual life." As has been noted by other jurists, the pandemic has resulted in a marked increase in relocation applications, and as has been frequently reported, many families agreed to relocate during the pandemic.
However, what has not changed is the fundamental importance of close and frequent connection between loved ones, and as is relevant here - parents and their children. The law on custody and relocation, which reflects these fundamental values regarding intimate, meaningful connection, has also not changed. It remains the case that each family presents unique facts and circumstances to be considered by the Court, with the rights and needs and best interest of children given the most weight. While the Court of Appeals in Tropea spoke of the relocation cases before it as presenting "some of the knottiest and most disturbing problems that our courts are called upon to resolve" (Matter of Tropea v. Tropea, 87 N.Y.2d 727, 736 [1996]), this case presents a situation of either few knots or knots of one's own making. In either case, while deciding these cases may be challenging because of the humanity of all the family members involved, the totality of the factors presented and the best interest of the child provide a clear answer to this conflict.
In this post-judgment motion, the Defendant mother seeks permission to relocate with the parties nine-year-old son, J.H. to Pennsylvania, approximately 125 miles away. The Plaintiff father opposes the move.
Background
The parties were married in 2013 and had one child in 2014. This divorce action was commenced in 2016 and the parties entered into a Stipulation of Settlement on July 26, 2018. Their stipulation was incorporated into the Judgment of Divorce, which was entered on or about September 24, 2018.
Pursuant to the parties' agreement, the parties have joint legal custody of their son. They are obligated to cooperate with each other to jointly decide major matters including educational and medical issues. More specifically, they set up a protocol to communicate on major decisions via email. Both parties were also to have access to all the child's providers and records. If they disagreed on an issue, they were obligated to consult an appropriate professional or a parenting coordinator, and the decision of the party with whom the expert agrees would control, unless a Court orders otherwise. As to educational issues, the Defendant was given final decision-making authority.Generally, Plaintiff had parental access on alternate weekends from Thursday through Sunday. In addition, he had access in the summer, for Father's Day, alternate major religious/national holidays and other time periods.
Significantly, the parties agreed that each of them would maintain a home in Manhattan or Brooklyn where the child would have access with the parent until his emancipation or graduation from high school.
Regarding child support, Plaintiff agreed to pay $9,080 in basic child support each month, an amount which has risen closer to $10,000 more recently with cost of living increases. Plaintiff also provides health insurance for the child, and pays 100% of unreimbursed medical expenses, 100% of all agreed upon extracurricular activities, 80% of summer camp and activities, 100% of all educational costs, and 80% of childcare/nanny expenses, if the Defendant is working.
Plaintiff also paid post settlement maintenance to Defendant of $10,967 per month for approximately 1.5 years. As for equitable distribution, among other things the Defendant was granted sole title to a townhouse in Fort Greene and a lump sum payment of $1.8 million dollars as and for a distributive award.
At some point, Defendant had a romantic relationship with A.R., with whom she had a child named A., born in 2020.
In March 2021, Defendant filed a motion seeking permission to relocate to Pennsylvania, raising various grounds that will be discussed in more depth below.
Shortly after making the motion, Plaintiff was concerned that Defendant would take steps to further her relocation and filed a motion. In an April 15, 2021, Order to Show Cause signed by the Court, Defendant was ordered to not take any steps to further her relocation including: discussing a move with the child, continuing an application with any schools outside of New York City, visiting any schools, permitting the child to interact with any schools, and viewing any homes located outside of New York with the child.
Then, in July 2021, Plaintiff filed yet another motion after Defendant advised that she had plans to relocate to Pennsylvania that summer, and had already sold her Brooklyn townhouse and planned to buy a home in Pennsylvania in contravention of the Court's order. Defendant also had the child write an essay in connection with his application to a Pennsylvania school - The Grayson School. On or around July 12, 2021, the Court ordered that Defendant could not view any homes with the child or discuss any relocation with the child, could not travel with the child to any home she had purchased in Pennsylvania unless she takes steps to make the child believe it is a vacation/weekend home, and that Defendant would take all steps to ensure the child's enrollment in his current school in Brooklyn for the 2021-22 school year.
Trial
A trial was held over 10 days between September 2022 and March 2023. The Court heard from both parties; the court-appointed forensic evaluator Dr. Stephen Herman; Dr. Jonathan Gould, Defendant's retained forensic psychologist; two educational experts - Dr. Mark Burdick and Mary Miele; a neuropsychologist - Dr. Cassie Fromowitz; and C.R., a teacher. Both parties also submitted a myriad of documents into evidence.
The Court generally finds the Plaintiff to be credible as his testimony was direct and forthright. While Defendant was credible in some respects, her subjective reality does not align with objective reality, including, for example, the actual state of her finances. Indeed, she has had a lifestyle about which most New Yorkers can only dream. As one specific example, she claimed not to be able to afford childcare in New York City while the parties' agreement requires Plaintiff to pay 80% of childcare costs if Defendant is working. At the same time, she has been able to afford her lifestyle without having to work at all. She also sold her townhouse for $3.7 million, and purchased the Pennsylvania home for $1.7 million while also renting an apartment in Brooklyn for $13,000 per month. As another example, while claiming to have no money, she admitted she did not seek child support from the father of her younger child and admitted to spending $20,000 on a treehouse in Pennsylvania, entering a contract for a $200,000 swimming pool, taking expensive vacations, and spending a small fortune on this litigation including for counsel and experts she hired. Oddly, she seemed to have some distant awareness of this contrast when she testified in relation to the stress of raising her children, that she sounds "like a princess who is complaining that her diamond shoes are too tight."
Defendant also manipulated various people, including the teacher and neuropsychologist who testified, in her quest to support her relocation. She also purposely did not include Plaintiff in aspects of the relocation and school application process, including by providing a false email for the Plaintiff, and violated Court orders. All the foregoing seriously undercut her trustworthiness and ultimately it appears Defendant crafted her story to support her request to move and placed her desires and interests ahead of the child's interests.
While the Court generally credits the testimony of the educational experts - Burdick and Miele - their testimony only established that both the Pennsylvania school Defendant preferred and various schools in New York could be a good fit for the child and could provide the challenge and support he needs.
The Court also generally credits the testimony of C.R., but her testimony was of limited value given that she never taught the child in person and only observed him virtually during the pandemic. In addition, the Court has concerns about her friendship with Defendant and her possibly having been manipulated by Defendant. Indeed, she had various communications with Defendant of a personal nature, and did not include Plaintiff in various communications including when she sent a recommendation to the Grayson school at Defendant's behest.
The Court has similar concerns with Dr. Fromowitz who was misled and manipulated by Defendant, especially because she never spoke to or included Plaintiff regarding her recommendation letter nor had any direct or substantive knowledge of the Pennsylvania school. In any event, Dr. Fromowitz did not conclude that the Pennsylvania school was the only place that could meet the child's needs, only that it could be an appropriate placement.
Finally, although the Court finds Dr. Herman to be reliable and credible, the Court does not rely on his report even though it may support the Court's ultimate conclusions. Indeed, the factors, factual and legal analysis relevant to a relocation application are within the ken of the Court.
Regarding Dr. Gould, the Court has concerns about his objectivity and bias in favor of Defendant. Dr. Gould also made many inferences and findings that were not supported by any evidence.
Discussion
A. General Analysis
The parent seeking to relocate has the burden to establish the move is in the best interest of the child (see Koegler v. Woodard, 96 A.D.3d 454, 458 [1st Dept 2012]). As set forth in Tropea, the factors to consider related to relocation include:
1)"the impact of the move on the relationship between the child and the noncustodial parent"; 2) "the custodial parent's reasons for wanting to relocate and the benefits that the child may enjoy or the harm that may ensue if the move is or is not permitted"; 3) "economic necessity or a specific health-related concern"; 4) "the demands of a second marriage and the custodial parent's opportunity to improve his or her economic situation; 5) "the noncustodial parent's interest in securing custody, as well as the feasibility and desirability of a change in custody"; 6) the child's "ties to the noncustodial parent and to the community"; 7) "the good faith of the parents in requesting or opposing the move"; 8) "the child's respective attachments to the custodial and noncustodial parent"; 9) "the possibility of devising a visitation schedule that will enable the noncustodial parent to maintain a meaningful parent-child relationship"; 10) "the quality of the life-style that the child would have if the proposed move were permitted or denied"; 11) "the negative impact, if any, from continued or exacerbated hostility between the custodial and noncustodial parents"; and 12) "the effect that the move may have on any extended family relationships" (see Tropea, 87 N.Y.2d at 739-40).
The Court is of course free to consider and give weight to all of the factors that may be relevant to the determination. Fundamentally, "each relocation request 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" (Id. at 739). Moreover, while the respective rights of the custodial and noncustodial parents are unquestionably significant factors that must be considered... it is the rights and needs of the children that must be accorded the greatest weight" (Id. at 739).
The Defendant relies on various cases where relocation was permitted. However, the cases are distinguishable. For example, Matter of David B. v Katherine G. (138 A.D.3d 403 [1st Dept 2016]) involved only a 45-mile move to Katonah, additional summer and vacation time was to be provided to the father, and the mother could not find any affordable housing in New York City after she was evicted from her residence. In addition, the attorney for the child and the forensic evaluator supported the move.
Matter of Masiello v Milano (180 A.D.3d 683 [2d Dept 2020]), which permitted a move to South Carolina, involved a parent who was diagnosed with multiple sclerosis in 2015, obtained employment in South Carolina, and had support from the maternal grandmother and extended family in South Carolina, which she did not have in New York. No such serious medical condition, employment, or family support already established in the intended new location is present here.
Nor does this case involve a relocation request based on a desire to live with a new spouse or sibling of the subject child (see e.g. Matter of Jose v Guilford, 188 A.D.3d 1209 [2d Dept 2020]).The Court here considers only the factors relevant to this case, based on the issues and evidence presented to this Court, and not unrelated concerns or strained comparisons to other matters.
B. Factors
1. The COVID-19 Pandemic
As this decision began, and, as will be discussed further below, it is significant that the Defendant's stated reasoning for the move is closely related to stressors that occurred during the pandemic. The pandemic was a time of extreme fear and death and for someone like Defendant, who testified she does not like living in New York, it is certain that she did not enjoy living in New York during the pandemic.
No wonder she referred to her son as a "caged animal" in describing him during the pandemic. And, like many children, her son had significant challenges with virtual learning during the pandemic. Moreover, it turned out that the child needed medications to manage his ADHD, and also experienced other emotional and learning challenges. However, these issues subsided once the child received appropriate medication and began attending school in person. Like many others during the pandemic, Defendant also describes her appreciation of outdoor space and larger suburban style homes. Again, this is no surprise. And like others, she understandably wanted to have extended family closer and more accessible to her during such a tumultuous time.
Other stated stressors, including finances and handling her second child without that child's father were surely exacerbated just as feelings of stress increased one thousand-fold for all parents quarantining in their homes with multiple young children. It was no doubt a difficult time. The Defendant also explained her relationship with A.R., the father of her second child, was complex and strained during the pandemic, particularly because he did not want to live in New York. She noted that he lived somewhere in Oregon but did not have his address.
Similarly, the time Plaintiff spent out of New York City during the pandemic at his various residences, including during weekends or other time with the child, cannot be viewed as a permanent condition. Rather, the significant time he spent outside of the City must be viewed in the context of the pandemic. Indeed, Plaintiff connected his time spent out of New York to the pandemic in contrast with his current schedule. Nor is it significant that at some point Plaintiff was contemplating being "bi-continental," and splitting his time between New York and Australia. Indeed, he never took any steps to effectuate such an existence.
And, the way the parties navigated exchanges during the pandemic and during this litigation once Defendant purchased her home in Pennsylvania cannot now be used to establish some factor in favor of the relocation.
In Cleary-Thomas v Thomas (200 A.D.3d 516 [1st Dept 2021]), the First Department held that "the parties' informal agreement to reside in their second homes on Long Island during the pandemic did not alter the five-mile radius clause of the custody agreement." Similarly, here the parties' behavior and residences during the pandemic did not alter their agreement or provide a basis to show that relocation would be in the child's best interests.
It is the view of the Court that such temporary, finite, passing stressors and conditions, some of which are currently resolved, cannot support a relocation request. This is so since there is no basis to move based on the factors cited, the totality of circumstances and the best interest of the child.
2. Bad Faith and Behavior
As the communications between the parties establish, Plaintiff would not entertain Defendant's request to relocate to Pennsylvania. However, despite his stated position and the residence clause in the parties' agreement, Defendant forged on. She began searching for a home in Pennsylvania, began a school application process for the Grayson school, located in Pennsylvania, and in connection with that application spoke to various teachers and experts to support the application. She also sold her Brooklyn townhouse and purchased a home in Pennsylvania. She did many of these things without involving Plaintiff, and often manipulated third parties by making it seem that Plaintiff was in agreement with her relocation or the school application. For example, she used the phrase "we" in her communications with third parties to imply that she and Plaintiff were in agreement. She did not ensure Plaintiff was included on emails and in a release of a neuropsychological report sent to the Grayson school. Even in the midst of this hotly contested litigation she described how she kept the Director of the Grayson school "warm" by misrepresenting to her the true conflict surrounding the application.
Defendant's continued behavior, including her involvement of the child in the application process, and her introducing the child to the home she purchased in Pennsylvania, necessitated the filing of motions and the intervention of the Court in granting interim relief.
However, although the court is hesitant to reward Defendant for her deception and less than forthright behavior, her misdeeds are not the primary factor to be considered. As in all such matters, it is the child's best interests that come first and foremost (S.A. v R.H., 67 Misc.3d 1227 (A) [Sup Ct NY County 2020]; Eschbach v Eschbach, 56 N.Y.2d 167 [1982]; Matter of James Joseph M. v Rosana R., 32 A.D.3d 725 [1st Dept 2006]).
3. Existing Agreement and Clause
As noted, the parties' 2018 agreement specifically provided that "each of them would maintain a home in Manhattan or Brooklyn" where the child would have access with the parent until his emancipation or graduation from high school. In other words, the parties agreed to and intended for their child to be raised in New York City, for each of them to maintain a residence here, and for their access to generally be in New York City. While the parties' agreement and residence provision is not dispositive (see e.g. Schwartz v Schwartz, 186 A.D.3d 1742 [2d Dept 2020]), agreements must mean something, and the Court certainly considers this as a factor against the move.
4. Stability and Connection to New York
More important than the agreement is the fact that the child has only known New York as his home. He has always had a home or multiple homes in New York. Plaintiff described the child's room in his home as containing books and stuffed animals, Legos, and school art all over. Plaintiff also makes sure the child completes certain chores in his home.
It is undisputed that the child is involved with various supports here in New York, including attending occupational therapy, play therapy, and monthly meetings with Dr. N.W., a psychiatrist at the Child Mind Institute. Defendant testified that Dr. N.W. understands the child and that they have a good relationship. The child has also had the same pediatrician - Dr. R. - since he was one year old. Defendant stated that Dr. R. is familiar with the child's history, that the child is comfortable with her, and that Dr. R. has a good relationship with the child. Both parents have been able to attend many of the medical and related appointments here in New York, although Plaintiff has missed some of them.
Both parents have also utilized the same nanny for the child - B. - since 2017, and she often picks him up for school or assists care for the child in the Plaintiff's home. Although the child has had some bumps in his educational journey, he has always attended schools in New York.
Defendant indicated that she ceased using the nanny at the end of 2021.
Plaintiff testified that there are many activities the child has been engaged in for years in New York such as a chess club and math museum to which Plaintiff would take him. Plaintiff and the child also build complex Lego sets together, including a Hogwarts castle. Plaintiff also takes the child to various activities and events in the City, including spending lots of time in Brooklyn Bridge Park, attending a magic show and volunteering with [Local] Church. During Plaintiff's parenting time, the child often has playdates with his friends from school during which they enjoy board games and dinner.
Further, Plaintiff described his general access schedule with the child on alternate weeks. His time begins on Thursdays when he picks the child up from school and continues until drop off at school on Monday mornings. Plaintiff explained that this schedule allows him to do dinners, bath time and bed time during which Plaintiff tells family stories. In the mornings, Plaintiff also makes breakfast and on the school days will walk the child to school. Plaintiff explained this schedule could not continue if the relocation was permitted.
On weekends in New York, Plaintiff and the child might go to a farmer's market or a bookstore. They have also gone to church, parks, the Bronx Zoo, the Botanical Gardens, hockey games, Mets games, and movies. Some weekends they might travel to Baltimore for the weekend, always returning on Sunday so they can get ready for school the next day.
Plaintiff articulated his view that New York is the child's home, that in New York he will have access to both parents and all his needs - medical, educational and social - are being met and can be met here. He thinks that there are "unquantifiable opportunities" in New York and limitless social, cultural, and academic opportunities; that diversity is good for the child, and that it is positive that New York offers a "non-homogenized environment;" that New York is a City "like no other;" and that there are valuable cultural benefits to being in New York.
All of the connections to New York that the child has developed - school, friends, doctors, care providers, and beyond - all weigh heavily against the move. The Court sees no benefit to the child to disrupt all these contacts, services, and supports.
5. Education
The Court credits Defendant's testimony regarding the child's intelligence and aptitude which was, in any event, undisputed. Specifically, Defendant explained that the child is a math genius, and that he is a high needs child who needs intellectual stimulation. At the same time, he has had behavioral challenges over the years, is diagnosed with ADHD, and has had an IEP with various supports and goals that has changed over time. Indeed, while he was able to handle advanced math and skip the first grade, he also exhibited physically aggressive behavior. Ultimately, following a neuropsychological report, the parents consulted with the pediatrician who initially prescribed Ritalin and then the child was later prescribed Quillivant. There have been no more reports of bad behavior since he has been taking medication.
Defendant, who was heavily involved in the child's IEP and educational concerns, began looking at alternate school options around the country. She began an interest in the Grayson school and first reached out to the school in January 2021. Among other things, Defendant valued Grayson's individualized approach to education.
The child's second grade teacher - C.R. - testified that she taught J.H. virtually and never observed him in person. She observed that he was above grade level in math and reading. She also saw him get frustrated and upset by virtual learning. By the end of the 2nd grade year, the child was studying 7th grade math and 5th grade reading. She thought a gifted or specialized private school was an appropriate placement for J.H., and specifically that Grayson was a good fit. Of course, she was told about Grayson by Defendant who also asked her to write a recommendation letter.
Dr. Cassie Fromowitz, who conducted the neuropsychological test on the child in 2021, recommended that J.H. be in an Integrated Co-Teaching (ICT) classroom in public school. She found him to be a gifted child with a full scale I.Q. of 141 who also needed certain supports. She described him as a twice exceptional (2E) student meaning that he is intellectually gifted but also faces challenges that make it difficult for him to meet his potential in a standard school environment. In her testimony, she mentioned a few New York schools that might be appropriate for J.H.and agreed there were schools in New York for gifted children. For example, she recommended the Speyer school in New York. However, she also explained that at Defendant's request she wrote a recommendation to Grayson, even though it was not a 2E placement. She was only familiar with Grayson based on what Defendant told her and by looking at the school's website. Yet, she concluded it was an appropriate placement at the time she conducted her evaluation in 2021. In any event, she could not state what was an appropriate placement for J.H. at the time of her testimony in October 2022.
Defendant's expert - Dr. Burdick - explained that J.H.'s IQ registered in the 99th percentile and that he was of superior intellect. He opined that his current school in Brooklyn, the International School, did not have a curriculum or peers to permit the child to grow. He opined that the most appropriate place for J.H. is the Grayson school in Pennsylvania. He explained that this was so because it had outdoor space, similarly gifted children with similar challenges, and utilized a least restrictive and team-based model of learning. However, Burdick never interviewed J.H. and never personally visited Grayson.
Although Burdick claimed that few schools meet J.H.'s needs, he also admitted that other schools in New York, including the Speyer School, could be considered and would be a good fit for J.H. He stated that other schools in New York could offer the services and supports Grayson provides. He also admitted that it was fair to say there are many appropriate options for J.H. in New York. He further agreed that the Plaintiff's suggestion to hire an educational consultant was reasonable.
Plaintiff's expert - Mary Miele - who has placed hundreds of students in New York and Tri-State area schools, including many gifted kids, opined that J.H. is a gifted and talented child who benefits from smaller classes and supports. She discussed various interventions and supports he needs and concluded that his current school could meet his needs if he is in an ICT class. She also indicated various New York private schools that could meet his needs, including Speyer, Quad, Packer Collegiate, and Bay Ridge Prep. She agreed that Grayson could also meet his needs. Ultimately, she recommended the parties would need to do more investigation for each of the schools.
In sum, while there may be some evidence supporting the child attending a different or specialized school, there is no record evidence that the only appropriate school is the Grayson School. Nor is there evidence that the only appropriate school is located in Pennsylvania or that there are no suitable schools in New York, to the contrary, both experts and Dr. Fromowitz named certain appropriate schools in New York City.
6. Domestic Violence
The Court permitted some testimony regarding domestic violence and alcohol concerns. The most significant aspects of the domestic violence history described by Defendant were not disputed. Critically, in 2008 and 2014 there were two incidents of choking, and in 2009 Plaintiff broke her jaw after an argument, and she had to have her jaw wired shut. Although Defendant expressed feeling that Plaintiff was controlling her financially, she could not come up with an example of him doing so and, in fact, admitted he paid all of his financial obligations for the child and would not withhold monies for the child.
Defendant also spoke about her concerns with Plaintiff's use of alcohol and the agreed upon requirement that he test through Soberlink. She also provided evidence of positive Soberlink tests as well as late and/or missed tests. However, there was no claim of any violence since the parties entered their agreement in 2018. Defendant also stated she had no current concerns about Plaintiff's alcohol use.
While serious domestic violence must be considered and surely has a lifelong impact, and Defendant claims to be fearful of Plaintiff, it is also true that there are no ongoing concerns of violence or control, and there have been none since 2018. Thus, at best very little weight can be given to this concern at present, especially since the parties entered their 2018 stipulation with full knowledge of these issues and their past, and they have little bearing on the relocation request.
Defendant relies on cases that have no relevance to the circumstances here (see e.g. Matter of Ramon R. v Carmen L., 188 A.D.3d 545 [1st Dept 2020][mother had been living in shelters with the children after fleeing domestic violence by the father]).
7. Plaintiff's Residences, Travel, and Wealth
There is no question that Plaintiff earns a significant amount of money and owns many properties. There was testimony that his income historically ranged between 5 and 15 million dollars each year. The parties also stipulated that he owned various properties, including his residence in Brooklyn, as well as a few properties in Nashville, Tennessee, a home in New Orleans, Louisiana, and a property in Baltimore, Maryland. Plaintiff also files taxes as a resident of Tennessee.
Plaintiff explained that he has maintained a home in New York for at least 23 years, and that he has worked for the same company for 23 years working on restructuring matters. His office is located on Park Avenue in Manhattan. He is also able to work remotely from Nashville and Baltimore. He also has to travel as part of his work as he is in charge of his firm's Sydney, Australia office and, more recently, the Sao Paolo, Brazil office. He travels to Sydney four times every year. He noted that he travels less than he did in the past and that he tries to schedule his travel around his parenting time. His wife, J.C., also works for a bank with offices located in Manhattan.
Plaintiff also explained that from 2019 through 2021, particularly during the height of the pandemic, he was out of New York more than he was in New York. However, in 2022 he spent more time in New York than anywhere else. He also explained that in 2020 he primarily stayed in Nashville during the pandemic when he did not have parental access and that his Manhattan office did not reopen until sometime in 2022.
However, he also spent significant time in New York for his parental access which was also challenging given quarantine rules. He also spent various summer periods, holidays, and long weekends with J.H. in Baltimore or more rarely in Nashville. A chart of where he spent his parenting time - prepared by Defendant - was generally not contested. However, it is significant that many of the times he traveled out of New York with J.H. were during holidays, summers, school breaks, or long weekends. In any event, parents may reasonably choose to travel with their kids on weekends to their vacation homes or to visit family, as described by Plaintiff. Defendant too may reasonably choose to travel with J.H. to her Pennsylvania home on weekends.
Plaintiff also spends time with his son in New York, including picking him up from school, arranging playdates in the neighborhood, and on weekends enjoying the cultural offerings in New York.
And, despite his wealth and many residences, he has no home in Pennsylvania or connections there, and could not practically relocate to Pennsylvania. He would also not be able to continue to enjoy a Thursday through Monday schedule if J.H. lived in Pennsylvania. Indeed, the travel time to Pennsylvania is a few hours either by car or train. Defendant's expectation that she can dictate that Plaintiff should simply purchase another property in Pennsylvania is unfair and unrealistic and ignores all of Plaintiff's and the child's ties to New York.
It is also significant that at some point Plaintiff proposed everyone moving to Baltimore. Yet, he did so to avoid this litigation and because he has a home and family in Baltimore, it seemed like a potential solution. He noted that Defendant's parents could also move to Baltimore since they were willing to move.
Overall, the Court finds Defendant's contentions about Plaintiff's residences and travel unavailing. Indeed, much of the evidence related to the time of the pandemic. In any event, the Court will not penalize someone for work travel or because they have the ability and choose to travel to vacation homes during various times in the year. These arguments in no way support the relocation request.
8. Extended Family and Social Capital
In support of her relocation request Defendant makes a claim that the move will benefit J.H. because he will have the support of her parents and sister, and other extended family.
She stated that J.H. is very close with her mother, who has been a frequent childcare provider. She explained that he is comfortable with her, and she has handled his outbursts well. She has observed J.H. enjoying his time with her mother. Her father provides J.H. with intellectual stimulation and they have a unique relationship and enjoy exploring things together. There is no reason to question J.H.'s positive relationships with his grandparents.
However, Defendant's parents do not live in Pennsylvania. Rather, Defendant testified that her parents and sister live in Dover, Delaware. In fact, her parents have lived there for 28 years. In any event, the renovations to the Pennsylvania home that would be necessary for them to live with her have not commenced. Further, it is unclear how her father could live in the home currently as he has mobility issues and can't climb steps while all the bedrooms in the Pennsylvania home are on the second floor. If Defendant built a separate structure for her parents, she estimated it would cost her $100,000 and she was unsure when they could actually move in.
Further, it is unreasonable to accept Defendant's claim that she could not find any nanny in New York that is appropriate for J.H., and that only her parents can care for him. Indeed, her father is physically limited which begs the question of how he could handle J.H.'s energy and need for outdoor activities. This is an example of Defendant's efforts to create a story to support what she wants.
It is also notable that Defendant did not call any of her family members as witnesses and thus there is no first-hand testimony about their ability and desire, if any, to relocate to Pennsylvania.
In essence, her parents and sister are a hypothetical, wished for resource but not an actual, definite resources that is present in Pennsylvania. Thus, they cannot be considered a factor supporting the relocation.
9. Defendant's Finances and Happiness
There is no debate that Defendant is the primary parent and that she has done an excellent job supporting J.H.'s education, medical and daily needs. The Court credits her testimony insofar as she described all of her many efforts and her time spent in J.H.'s school and working on his IEP and related issues. It cannot be stressed enough that the work of the primary parent is often unspoken, unseen, and undervalued. At the same time, Defendant completely ignores, avoids and gives no value to the role of Plaintiff. While it is surely a different role, it too is a critical one, and one that is more important for J.H. than Defendant allows.
The Defendant was clear that she did not enjoy living in New York, particularly during the pandemic as a single mother to two young children. The Court accepts that the happiness of the primary parent is something to consider in this relocation analysis. Yet, parenting involves rights, benefits, responsibilities and sometimes sacrifices in the best interest of the child.
There is no basis to conclude that Pennsylvania is the only answer. Defendant, who has an economics degree from the Wharton School, can surely find new employment in New York. Given her assets and the child support she receives she can also afford to hire childcare, tutors or other appropriate support to reduce the stress she experiences as a single parent. Further, if she does work, Plaintiff is obligated to pay 80% of her childcare costs. Thus, her claims of being unable to afford to live in New York are baseless and contrary to her actual circumstances. In other words, there is no economic or health-related basis for the move.
This case is quite distant from cases such as Matter of Nancy A. v Juan A.B. (213 A.D.3d 401 [1st Dept 2023]) where true economic necessity for the relocation was established. In Nancy A., the mother received no financial support from the father, suffered a downturn in her financial condition due to the pandemic, and created a business in Florida in order to support herself and the child. The facts here are distinguishable from cases in which economic necessity warranted a relocation (see Matter of Quartey v Van Buren, 169 A.D.3d 690 [2d Dept 2019][father provided little financial support]; Matter of Dianna P. v Damon B.-D., 165 A.D.3d 470 [1st Dept 2018][the mother was "unable, despite an ongoing job search, to find full-time work in her field and has been unable to make ends meet for herself and the child" [in New York, but] "has obtained a full-time position in Georgia."]).
In addition, Defendant only provided her own conclusory testimony about a reduced cost of living in Pennsylvania. Nor did she provide evidence of a specific job offer or other specific economic circumstances in Pennsylvania that could be a factor in favor of relocation.
Finally, to the extent Defendant is in a worse financial position now that is because she chose to spend excessive sums on the Pennsylvania property, including the treehouse and pool, on her rental apartment, and especially on this litigation, including choosing to continue with a full hearing, to incur significant counsel fees, and to hire and pay various experts for their testimony, travel and related costs.
Defendant specifically admitted selling her townhome in New York to fund this litigation.
10. Impact of Relocation on Plaintiff's Relationship
Given the distance between New York and the Pennsylvania home, were the relocation permitted, it would significantly impact Plaintiff's parental access. He and the child could no longer spend extended weekends with each other as they do now and additional time in the summer or otherwise could never sufficiently replace this kind of time.
Although the Attorney for the Child advocated for J.H. to have more time with Plaintiff, Defendant stated that she saw no reason to increase his time. Plaintiff also shared his concerns that given Defendant's attitude, her "iceiness" towards him, including at doctor appointments, Defendant's refusal to speak to him at exchanges, and the child's change in demeanor towards the end of his parenting time, there were legitimate concerns how the relocation would further harm their relationship. Significantly, Defendant shared nothing positive about Plaintiff and his relationship with J.H. at any time during the trial.
It is true that at various times the parties were able to work together on access and Defendant has been flexible at times to accommodate Plaintiff's work travel and the like. Similarly, the parties have been able to exchange the child during the summer and other times during the pandemic at a meeting point between Baltimore and Pennsylvania. However, while this is laudable, it does not support a conclusion that making these types of exchanges permanent or routine is in the best interest of the child. To the contrary, it is preferable for both parents and the child to reside in closer proximity and for both parents to have frequent access with the child.
It is also clear that Plaintiff and J.H. have a good relationship and strong bond. But, it is difficult to connect when they are apart. Specifically, for the past 18 months J.H. has not wanted to engage with his father on virtual calls. In contrast, when he is with Plaintiff he is permitted to and engages in long video calls with Defendant. There is therefore a reasonable worry that a relocation will cause the relationship between Plaintiff and J.H. to suffer, and that Plaintiff could be further marginalized as a parent.
Given the foregoing, this Court considers the mother's disregard for the father's role in her son's life and questions whether she is truly capable of facilitating the child's relationship with the father, particularly were she to relocate (see Matter of Bush v Lopez, 125 A.D.3d 1150, 1151 [3d Dept 2015]["the mother's abrupt departure for North Carolina raises concerns about her commitment to encouraging a relationship between the father and the child "]).
11. Child's behavior and Outdoor space
There was much testimony from Defendant to support her claim that J.H.'s behavior is poor or deregulated in New York but is vastly improved on her Pennsylvania property. Specifically, she spoke glowingly about the treehouse she built for him and the time he enjoys in it. She also mentioned J.H. learning to ride his bike on the property, enjoying time at a creek and climbing boulders.
However, the evidence also established that J.H. enjoyed outdoor time in his backyard in Brooklyn before Defendant chose to sell her townhouse. She also had access to various parks in New York as well as outdoor space near her apartment. Further, J.H. spent time in Brooklyn Bridge Park.
In any event, Plaintiff did not observe J.H. being dysregulated in New York, although he suggested therapy could be beneficial for the child. Plaintiff explained that the child's behavior has improved with medication.
Once again, it appears Defendant's perception is skewed by her strong desire to move to Pennsylvania, as if it is the only place with outdoor space, or the only place the child can thrive. But, this view is not supported by the evidence. As discussed, there are many ways to ensure the child enjoys outdoor space in New York, It is also possible for him to enjoy Pennsylvania as a vacation home.
12. Reasons For and Against the Move
Defendant expressed that she wanted to move because of J.H.'s "caged animal" behavior; her need for childcare; her strained relationship with her daughter's father; being a single parent with two young children; her claim that it is more affordable to live in Pennsylvania; that her family could be a resource in Pennsylvania; and that the Pennsylvania home offers great outdoor space, which is healthy for J.H.
As discussed, some of these concerns have abated, notably the child's behavior and school issues since he has been properly medicated and can attend school in person. Some concerns are simply unavoidable parts of life as a parent, such as conflict between one's children, or children acting out in the evenings. Other concerns were exacerbated during the pandemic and/or are knots of Defendant's own making. In particular, Defendant chose not to seek employment in New York, chose to have another child, chose not to seek child support from her daughter's father, and chose not to hire childcare, tutors or other help, including seeking help from Plaintiff. There is no evidence from which the Court can conclude that she could not afford to live in New York, could not find work in New York or could not find appropriate childcare. Her townhome in Brooklyn also had a backyard which she testified her son enjoyed, and she also had access to various parks and outdoor spaces in Brooklyn. Such space is utilized by children throughout the City.
Plaintiff also articulated being a child of divorce and not wanting to be a "Disney dad" as part of his reasoning for being against the move. He expressed his desire to see his son more, to be involved, to live in the same City as him, and to have the opportunity to parent him. He explained that his father was unable to see him every week because of his work and geographic distance. He also shared legitimate concerns about the conflict's impact on his son, and his fear that their relationship would not be as close were the move permitted.
Ultimately, while Defendant may genuinely desire to move and may truly prefer Pennsylvania, the evidence also demonstrates that she did not attempt to improve her life in New York at all. Rather, she set her sights on Pennsylvania without regard to the needs and interests of the child.
While there was some testimony regarding alleged control by Plaintiff and certainly argument by Defendant's counsel that Plaintiff opposes the move in order to control Defendant, the credible evidence did not establish the same. Rather, it established that Plaintiff had reasonable concerns about relocation causing a reduction in his time with his son, a negative impact on their relationship, and overall being against the child's interest.
13. The Attorney for the Child
The Attorney for the Child argued that the parties' agreement should not be lightly tossed aside, and further that it defied logic to claim there was no appropriate school in New York for J.H. Ultimately, she did not believe a move to Pennsylvania was in the child's best interests. She also stressed that the child enjoyed his friends and life in New York and wanted to see his father more often. She also suggested that Defendant exaggerated issues in an effort to meet her burden of proof.
The position of the Attorney for the Child is certainly a factor considered by the Court.
Conclusion
The time for virtual life and conditions during the pandemic have long since ended. The real-life connections between J.H. and his parents, and all those who are present in his life in New York City are paramount.
Defendant has utterly failed to meet her burden to demonstrate that her proposed relocation would be in the child's best interests. This case is not a "close call" like the circumstances set forth in Matter of Daniel G. v Marie H. (196 A.D.3d 801 [3d Dept 2021]), which involved a child protective investigation, and children with autism, among other things.
Defendant's wishes as the primary parent are insufficient in light of the many remaining factors which support J.H. remaining here. One cannot force a basis for relocation by purchasing a home in the midst of litigation or by creating a story that is at odds with reality and logic. But, that is precisely what Defendant has attempted to accomplish.
Defendant put forth a forced narrative in a transparent effort to meet a legal standard. But, her own testimony was objectively inaccurate, internally inconsistent, and conclusory.
After considering the totality of the circumstances and the various factors discussed herein, the court does not find that permitting the child to relocate with Defendant is in the child's best interest.
It is the goal of this Court to promote stability and closure for the child, and a future with frequent contact and input from both his parents. While there are certainly further discussions to be had, including regarding J.H.'s schooling in New York, his enrollment in therapy, and his desire for more time with his father, it is the expectation of the Court that the parties engage in co-parenting together with only the needs and interests of J.H. guiding them.
In accordance with the foregoing, the motion is denied.
This constitutes the decision of the Court.