TO:
FROM:
RE: Will A Court Grant Permission To Allison Frank Allowing Her To Relocate With The
Parties’ Children
DATE:
I. Conclusion
In all probability, it is more likely than not that the court will not allow for Allison Frank, the custodial parent, to move after a divorce. Donald Frank is more financially stable in the case law and takes a substantial interest in the children’s co-curricular activities. Donald has agreed to take responsibility and pay $2500 in child support and $1000 in alimony to the custodial parent, Allison. Allison has no current employment neither does she have any promising hopes for getting a job. This means she will have a challenge in managing all of the children’s needs. Her reason for relocating might be deemed unreasonable. Wanting the children to bond with her mother at the expense of their relationship with their father will not be in the children’s best interest. Moving the children from the only place they have known since birth might be found to be against their will. Lastly, the distance between Long Island and South jersey is long, meaning long journeys taken by either the father or the children. Allison can, however, sway the court’s decision by claiming that the financial strain and the lack of a caregiver during her employment that might be experienced will be cushioned by the grandparents. This argument might still bear less weight, and its grounds be deemed unreasonable by the court.
For lawyers to determine the ruling, the law used and standards set in deciding such cases have to be put into perspective. We look at the point of Tropea v Tropea, the law used before this case, how the law changed, why it changed, and what the law is today.
II. What the Law Was & What it is Now
In the case of Tropea v Tropea, the custodial parent sought a move from Onondaga County to Schenectady. The non-custodial parent then filed for a change in custody, citing it was a punishment to him. Both parties were barred from moving outside the county of Onondaga, where both resided without any prior judicial approval. The petitioner’s need to move was cited as a product of her own lifestyle decisions. The respondent had proved that he had maintained meaningful contact with his children by participating in their activities. He fulfilled all his parental duties. The respondent argued that he was being punished by distance and weekday contact despite his children’s social and educational lives. However, the Appellate Division reversed the ruling. It affirmed that the petitioner, the wife, had made necessary showing that the requested relocation would not deny the respondent regular and meaningful access to his children (Matter of Tropea v. Tropea, 87 N.Y.2d 727). This was based on evidence that proved the father harbored contempt for the mother and had displayed it in front of the children. The court cited that the petitioner’s proposed visiting schedule allowed the respondent to have the opportunity for frequent and substantial contact with his children. The move was decided to be of interest to the children. The father was then granted weekend visits, summer, and vacation visits.
Before this case law, the formulae being used involved a three-step route, known as the exceptional circumstance test. The three-step case included, first of all, determining whether the move would result in the determent of meaningful and regular access to the child. The non-custodial parent had to prove beyond reasonable doubt that the custodial parent’s relocation with the children meant that they were denied a chance to have frequent and substantial contact with the child. The second part was proving that the move was against the best interest of the child. This was mainly seen through the custodial parents’ economic potential. Whereas if the child’s financial interests are not served, the relocation was deemed not feasible. The third step was proving that the move was in the best interest of the child. The “best interest” criteria were free, and the courts interpreted it as per their subjective view. ( Matter of Hemphill v. Hemphill 169 AD 2d 29 – N.Y.S 2d)
This method was then changed due to its free nature and complex nature of determining the child’s best interest. In the Hemphill v Hemphill case, the court deserted this mode of ruling relocation cases. The court decided to wage the child’s rights against the parent’s rights but later referred to the three-tier rule in determining the case; see (Matter of Hemphill v Hemphill 169 AD 2d 29 – N.Y.). This exceptional condition test was not entirely abandoned until the point of Tropea v Tropea.
The case of Browner v Kenward accompanied the Tropea v Tropea case had both parents first agreeing on a move. The first move was that the custodial mother moved a distance of 35 miles away from the father. The mother then sought to drive 130 miles away. She proved that she had found housing and employment in Pittsfield and that her parents were also moving there. The father argued that the move would deny him meaning complete contact and that the onerous travel arrangements would likely affect the children’s willingness to visit him frequently as they had currently done. The respondent put forth an emotional case citing that the move brought the child closer to his grandparents, and the action did not deny the father’s visitation. The court then decided that she did not need to prove further that the relocation would not deter the respondent from meaningful contact with the child. (213 AD2d 400, 401.)
In the courts’ attempt to move away from the three-level exceptional condition test, the court stood because of the factors that come into play when making a ruling on matters of custodial and non-custodial relocation with the children
“include, but are not limited to each parent’s reasons for seeking or opposing the move, the quality of the relationship between the child and the custodial and non-custodial parents, the impact of the relocation on the standards of the child’s future contact with the non-custodial parent, the level to which the parent is holding physical custody and the child’s life may be improved by educationally, emotionally and economically by the relocation and the feasibility of preserving the relationship between the non-custodial parent and the child through suitable visitation plans.” (Matter of Tropea v. Tropea, 87 N.Y.2d 727, 665 N.E.2d 145, 642 N.Y.S.2d 575)
III. Factors the Courts Look At in Determining Relocation Case
The issues that the court will likely look at may be based on the criteria used on the Tropea v Tropea case and many other cases. Suppose the courts find Donald being exceptionally involved in his children’s upbringing and his life is structured, so he participates in the children’s activities sacrificially. In that case, the court may not allow Allison to move to South Jersey with the children. Such as the criteria used in the case of Rybicki v Rybicki where the court deemed that the father made personal, professional, and financial sacrifices in the care given to his children and ruled in his favor by denying the custodial parent to relocate. They ruled that the custody rights awarded to the mother were ‘conditioned upon the continued residency of the mother in Northport New York, failure to which the custody will be awarded to the father.” (Matter of Rybicki v Rybicki 176AD 2d 867 – NY).
If the relocation meant that the children would travel long distances and constitute them to turn into commuters, then the court might not allow Allison to move with the children to South Carolina. The distance from Long Island to South Jersey is 177 miles. This means a two-and-a-half-hour journey at the very least. This may be seen as a disadvantage for both Donald as well as his children by the court. I assume that the journey may prove to be strenuous on the children if they are made to travel that long to visit the father, and the trip could also cause inconvenience to Donald and his work. He might not make it to his children’s activities, leading to drift in the relationship between father and children. ( See Matter of Rybicki v Rybicki 176AD 2d 867 – NY). Another factor is that the court might find her financial status not being of the children’s best interest as Donald undoubtedly earns more than the court might bar her from relocating.
On the other hand, if Allison can prove that she is the primary caregiver, the relationship between the children and her extended family is beneficial. The court might lean towards her relocation. Her financial status when she relocates might be found not stable enough, but the support from her parents in caregiving and cost-cutting then the court might also allow her to move to South Jersey.
IV. Case Law After Tropea Relating to the Factors that the courts might consider
Matter of Martino v Ramos
In this case, the father had proved that he exercised all his duties right, and almost all weekends, he took part in the children’s lives by participating in all activities the children engaged in. The mother presented evidence that relocation to South Carolina would decrease her housing cost. Still, the cause of action of moving the children from the only the children knew and grew up was not justified. Removing them from the place they were thriving socially and that the relocation would affect the quality of the children’s relationship with their father. (Matter of Martino v Ramos, 2009 NY Op 5865- N.Y. See Hirtz v. Hirtz, 108 AD 3d 712 -N.Y.S. 553 Said v Said, 61 A.D. 3d 879 N.Y.S. 384).
This case law can be used in coming up with a possible decision by the courter in Franks’ case. If Donald can prove his willingness to commit to being part of his children’s lives and that his relationship with his children would be adversely affected by the relocation, then the relocation might not happen.
Matter of Davis v Ogden
The father, in this case, failed to commit to several visits. He had gone to see the children approximately ten times in a total of thirty allocated hours. He never attended any of the children’s extracurricular activities, communicated with their tutors, scheduled, or attended their doctor’s appointments. He rarely even called the children. On the other hand, the mother was able to prove that she was the children’s primary caregiver. She demonstrated that the relocation would significantly enhance the children’s quality of life. The presence of close family members to support her also influenced the decision of the court to allow the move. (Matter of Davis v. Ogden, 109 AD 3d 539-NY; See ).
The above case does point to a possibility of the court to allow the move by Allison to South Jersey based on the presence of her parents and the care that the mother’s extended family will provide; it lacks merit to rule in her favor completely. Contrary to this case, Donald is a capable caregiver and is willing to attend to all his duties. Ogden is an irresponsible parent based on the facts presented. This is not part of our case, and Donald’s character is not given as a reason for acceptance of a relocation of the children.
Matter of Schwartz v Schwartz
Both parties in this case law were married, and both resided in Brooklyn Heights. They were granted joint custody of the children. The father had visitation rights every Monday and one-half of every holiday. The mother later became engaged and offered employment in New Jersey. The court denied her the move to New Jersey. Soon after, without allowance from the court, she decided to make a non-refundable down payment on a house in Staten Island where she moved with her daughters. This was an area within the same state, but the mother could not prove that the move was in her daughter’s best interests. The matter did not arrive at the courts for a ruling on the motion, but an oral argument occurred. The court established that the move was not in the girls’ best interests. The father argued that the travel from Brooklyn Heights was challenging and would likely affect the children’s willingness to visit him as frequently. As no court move was in place in the case, the parties’ contentions, therefore, were of merit. (See Matter of Matter of Schwartz v Schwartz 2010 NY Slip Op 1472-NY)
The Franks’ case above means that if Allison decides to move without the court’s permission, the court will deem it not in the children’s best interest.
Matter of Ventura v Huggins
This case was heard in the same county court as Frank’s case was heard, but this does not determine that it will be judged the same way. The order after the hearing awarded the mother’s petition for permission to relocate to Georgia with the parties’ child and denied the father’s petition to modify prior custody of the subject’s child but granted him parenting time and visitation. ( See Matter of Ventura v Huggins 141 AD 3d 600- N.Y.). However, it is essential to note that in this case, the parties are not married in contracts to the Franks, who have been married 13 years. Citing another case, they concluded that “ A parent seeking to leave to move bears the burden of proving by a preponderance of the evidence that the proposed relocation would be in the child’s best interest.” (Matter of 141 AD 3d 600- N.Y.; See, Bjornson v Bjornson, 38 AD3d 816, 816-817)
In conclusion, a Court would likely not allow Allison Frank to relocate to South Jersey with the parties’ children because it is not in their best interests. In Long Island, closer to their father, their economic and social welfare are well protected. The move to South Jersey would also deny them meaningful contact with their father. The cases cited to prove that it is doubtful that the court will request Allison to relocate the parties’ children. The presence of other parents does not fully guarantee an allowance of relocation of the children by the custodial parent.
Tropea v. Tropea, 87 N.Y.2d 727, 665 N.E.2d 145, 642 N.Y.S.2d 575 (1996)
Ventura v Huggins, 141 AD 3d 600- N.Y. (2nd Dep’t 2016)
Martino v. Ramos, 64 A.D.3d 657, 884 N.Y.S.2d 427 (2nd Dep’t 2009)
Schwartz v. Schwartz, 70 A.D.3d 923, 895 N.Y.S.2d 206 (2nd Dep’t 2010)
Davis v. Ogden, 109 AD 3d 539-NY.S.2d 317(2nd Dep’t 2013).
Rybicki v Rybicki 176AD 2d 867 – NY.S.2d 867 (2nd Dep’t 1991)
Bjornson v Bjornson, 38 AD3d 816, 816-817 ( 2nd Dep’t 2007) Hemphill v Hemphill 169 AD 2d 29 – N.Y.S 2d (2nd Dep’t 1991)
Said v Said, 61 AD 3d 879 N.Y.S. 384. ( 2nd Dep’t 2009)
Hirtz v. Hirtz, 108 AD 3d 712 -N.Y.S. 553. (2nd Dep’t 2013)
