How to Succeed in a Relocation Case

Helping Your Client

With the Verhulst case in mind, it is obvious that when considering how best to help your client to successfully relocate with children, several factors must be taken into account. As with any other legal issue, it is important to analyze court decisions that have both granted and denied relocation, taking a close look at and addressing the factors that were analyzed in the courts' decisions. It is also imperative that thorough planning be implemented concerning all of the various areas the court considers well before, and not on the heels of, a hearing.

The 'Best Interests' Inquiry

When reviewing an application for relocation, the court's primary focus must be on the best interests of the children. Martino v. Ramos, 2009 WL 2032366 (2nd Dept. 2009); Matter of Tropea v. Tropea, 87 NY2d 727 (1996). In Martino, the court stated: “Relocation may be permitted if the custodial parent demonstrates, by a preponderance of the evidence, that the proposed move is in the child's best interests. When evaluating whether a proposed move will serve a child's best interests, the factors to be considered include, but are certainly not limited to each parent's reasons for seeking or opposing the move, the quality of the relationships between the child and the custodial and non-custodial parents, the impact of the move on the quantity and quality of the child's future contact with the non-custodial parent, the degree to which the custodial parent's and child's life may be enhanced economically, emotionally and educationally by the move, and the feasibility of preserving the relationship between the non-custodial parent and child through suitable visitation arrangements.”

Expounding on that same theme, the Court of Appeals in Tropea stressed that courts should consider all relevant facts and circumstances when considering a proposed relocation and should not be bound to the approach that had previously been used by the courts to determine relocation cases. The court in Tropea wrote: “Each relocation request must be considered on its on 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. While the respective rights of the custodial and non-custodial 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 since they are innocent victims of their parents' decision to divorce and are the least equipped to handle all the stresses of the changing family situation.”

The Successful Case

Attorneys may be aware that relocation may be possible if it can be established that the child's quality of life will be improved if the custodial parent is permitted to relocate, but what factors do courts consider when gauging quality of life?

Certainly, the financial well-being of the family is important. In Wirth v. Wirth, 56 AD3d 787 (2nd Dept. 2008), the Appellate Division, Second Department, permitted a mother to relocate with the parties' child because of economic factors. In Wirth, the court wrote: “[T]he mother established by a preponderance of the evidence that the proposed relocation to Florida was in the subject child's best interests [citing Matter of Tropea, supra]. Economic necessity ' may present a particularly persuasive ground for permitting the proposed move.” The court found that the mother amply demonstrated that, even if she were to obtain full-time employment at a salary commensurate with her prior employment, she could not afford both an apartment and daycare fees on Long Island, where the father was then living. Therefore, the appellate court found that Family Court should have granted her permission to relocate.

The proximity of relatives or others who can help care for a child can also be a good factor to argue when seeking relocation. For example, in Blundell v. Blundell, 150 AD2d 321 (2nd Dept. 1989), the Appellate Division reversed the ruling of the lower court and allowed the appellant mother to relocate to Londonberry, NH, where she owned a home and had strong family ties. The mother successfully argued that she wanted to live closer to her parents and brother because they would assist her in raising the children, and would also provide her with free babysitting while she worked. The mother did not have any immediate relatives in the Long Island area, the place from which she wanted to move.

It can also be helpful if your client is willing to be flexible with visitation by proposing to expand it, rather than limiting it as a result of the proposed relocation. In Mathie v. Mathie, 2009 WL 2395029 (2nd Dept. 2009), the court permitted the relocation of the appellant mother from Merrick, NY, to Marlboro, NJ, based upon the custodial parent's offer of a liberal parenting time arrangement to make up for the missed weekday visits of the non-custodial parent. With regard to the respondent father's loss of weekday contact, the court wrote: “While the weekday contact with the defendant is neither trivial nor insignificant, a visitation schedule could be devised that would allow for the continuation of the meaningful relationship between defendant and his son.” The court noted that the plaintiff had proposed a liberal visitation schedule that would substantially expand the father's visitation time with his son when compared with the schedule set out in the parties' stipulation. The father would be able to see his child during alternating school recesses, long weekends and summer vacations. “Indeed,” said the court, “the amount of quality time the defendant would spend with [the child] would actually increase notwithstanding the loss of the weekday evening visits.” In this case, the court was able to come to the conclusion that the added access the father would have under the new custody arrangement would in fact improve the child's, and the father's, quality of life.

Conclusion

Successful applicants for the right to relocate with their children are likely to give consideration to the following, and include them in their petitions:

• A detailed parenting time schedule that grants the non-custodial parent an equal or greater amount of parenting time than was provided for in the original time arrangement; A proposal for pick-ups and drop-offs that will alleviate the non-custodial parent's obligation to travel prolonged distances to see the children;
• Provision for monetary credits that the non-custodial parent will receive for the costs of securing parenting time in the custodial parent's proposed new domicile;
• Proof of how the children's life will be enhanced by the move, which would require researching the quality of the proposed new neighborhood, schools, child-care options, the general environment and extracurricular activities. Also to be considered here are the manner in which finances will be affected, and how the change in location will benefit the children's standard of living; and
• A showing that the relocating parent is cooperative and will accommodate the non-custodial parent's access to the children and to their activities.

Conclusion

It is important to discuss these issues with your client as soon as possible, so that he or she may take the steps necessary to meet the criteria set forth by Tropea. With advance planning and a careful gathering of evidence, you and your client can better present the court with the evidence it will need to find that a move is in the child's best interest. As we saw in Verhulst, a general, unspecific presentation to the court is unlikely to give him or her the chance to move to a new location, even if the move might arguably have benefited the child.

Jerome A. Wisselman, a member of this newsletter's Board of Editors, is a partner in the Great Neck firm of Wisselman, Harounian & Associates, P.C. Eyal Talassazan is an associate with the firm.

There is a growing trend in New York of custodial parents asking the courts to allow them to relocate with their children, taking them further away from the non-custodial parent. Many different factors have led to this situation, including: 1) the increase in the cost of living in the New York metropolitan area; 2) the inability of the custodial parent to afford to remain in the jurisdiction on his or her income alone; 3) difficulty in obtaining employment; and 4) a desire to relocate to reside near family and friends.

What the Courts Say

It can be a difficult task to persuade a court that it should permit the relocation of a child. Some of the problems custodial parents can encounter in this regard are illustrated by a recent case in which permission to move was denied. In In The Matter of Verhulst v. Putnam (Suffolk County Family Court, Referee Heather James, Aug. 3, 2009), a mother sought to relocate to northern Massachusetts with the parties' son, purportedly because she wanted to reside closer to her parents and was having difficultly finding suitable employment on Long Island. The court, however, ruled against relocation and ordered the mother to remain on Long Island because it became clear during the trial that she primarily wanted to distance herself and the parties' son from the father, to make it difficult for him to have contact with their child. Further, the mother failed to establish why she needed to move and why it was in the best interests of her child to relocate. Notably, although she alleged that she had lost her job on Long Island, she failed to provide any documentary proof verifying why her employment was terminated, and also neglected to provide the court with proof demonstrating her attempts to seek commensurate employment in the Long Island area. In addition, she failed to provide the court with a detailed parenting time schedule that would provide the father with a suitable amount of parenting time. The court, in denying the mother's petition, wrote: “Unfortunately, the mother's anger at the father's refusal to have a continued relationship with her has caused the mother to make every effort to minimize the father's role in [the child's] life. To allow the mother to relocate [the child's] residence to Massachusetts would undermine the father's relationship with [him] in a way for which there is no appropriate means to ensure future contact with the non-custodial parent.”

Helping Your Client

With the Verhulst case in mind, it is obvious that when considering how best to help your client to successfully relocate with children, several factors must be taken into account. As with any other legal issue, it is important to analyze court decisions that have both granted and denied relocation, taking a close look at and addressing the factors that were analyzed in the courts' decisions. It is also imperative that thorough planning be implemented concerning all of the various areas the court considers well before, and not on the heels of, a hearing.

The 'Best Interests' Inquiry

When reviewing an application for relocation, the court's primary focus must be on the best interests of the children. Martino v. Ramos, 2009 WL 2032366 (2nd Dept. 2009); Matter of Tropea v. Tropea , 87 NY2d 727 (1996). In Martino, the court stated: “Relocation may be permitted if the custodial parent demonstrates, by a preponderance of the evidence, that the proposed move is in the child's best interests. When evaluating whether a proposed move will serve a child's best interests, the factors to be considered include, but are certainly not limited to each parent's reasons for seeking or opposing the move, the quality of the relationships between the child and the custodial and non-custodial parents, the impact of the move on the quantity and quality of the child's future contact with the non-custodial parent, the degree to which the custodial parent's and child's life may be enhanced economically, emotionally and educationally by the move, and the feasibility of preserving the relationship between the non-custodial parent and child through suitable visitation arrangements.”

Expounding on that same theme, the Court of Appeals in Tropea stressed that courts should consider all relevant facts and circumstances when considering a proposed relocation and should not be bound to the approach that had previously been used by the courts to determine relocation cases. The court in Tropea wrote: “Each relocation request must be considered on its on 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. While the respective rights of the custodial and non-custodial 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 since they are innocent victims of their parents' decision to divorce and are the least equipped to handle all the stresses of the changing family situation.”

The Successful Case

Attorneys may be aware that relocation may be possible if it can be established that the child's quality of life will be improved if the custodial parent is permitted to relocate, but what factors do courts consider when gauging quality of life?

Certainly, the financial well-being of the family is important. In Wirth v. Wirth , 56 AD3d 787 (2nd Dept. 2008), the Appellate Division, Second Department, permitted a mother to relocate with the parties' child because of economic factors. In Wirth, the court wrote: “[T]he mother established by a preponderance of the evidence that the proposed relocation to Florida was in the subject child's best interests [citing Matter of Tropea, supra]. Economic necessity ' may present a particularly persuasive ground for permitting the proposed move.” The court found that the mother amply demonstrated that, even if she were to obtain full-time employment at a salary commensurate with her prior employment, she could not afford both an apartment and daycare fees on Long Island, where the father was then living. Therefore, the appellate court found that Family Court should have granted her permission to relocate.

The proximity of relatives or others who can help care for a child can also be a good factor to argue when seeking relocation. For example, in Blundell v. Blundell , 150 AD2d 321 (2nd Dept. 1989), the Appellate Division reversed the ruling of the lower court and allowed the appellant mother to relocate to Londonberry, NH, where she owned a home and had strong family ties. The mother successfully argued that she wanted to live closer to her parents and brother because they would assist her in raising the children, and would also provide her with free babysitting while she worked. The mother did not have any immediate relatives in the Long Island area, the place from which she wanted to move.

It can also be helpful if your client is willing to be flexible with visitation by proposing to expand it, rather than limiting it as a result of the proposed relocation. In Mathie v. Mathie, 2009 WL 2395029 (2nd Dept. 2009), the court permitted the relocation of the appellant mother from Merrick, NY, to Marlboro, NJ, based upon the custodial parent's offer of a liberal parenting time arrangement to make up for the missed weekday visits of the non-custodial parent. With regard to the respondent father's loss of weekday contact, the court wrote: “While the weekday contact with the defendant is neither trivial nor insignificant, a visitation schedule could be devised that would allow for the continuation of the meaningful relationship between defendant and his son.” The court noted that the plaintiff had proposed a liberal visitation schedule that would substantially expand the father's visitation time with his son when compared with the schedule set out in the parties' stipulation. The father would be able to see his child during alternating school recesses, long weekends and summer vacations. “Indeed,” said the court, “the amount of quality time the defendant would spend with [the child] would actually increase notwithstanding the loss of the weekday evening visits.” In this case, the court was able to come to the conclusion that the added access the father would have under the new custody arrangement would in fact improve the child's, and the father's, quality of life.

Conclusion

Successful applicants for the right to relocate with their children are likely to give consideration to the following, and include them in their petitions:

• A detailed parenting time schedule that grants the non-custodial parent an equal or greater amount of parenting time than was provided for in the original time arrangement; A proposal for pick-ups and drop-offs that will alleviate the non-custodial parent's obligation to travel prolonged distances to see the children;
• Provision for monetary credits that the non-custodial parent will receive for the costs of securing parenting time in the custodial parent's proposed new domicile;
• Proof of how the children's life will be enhanced by the move, which would require researching the quality of the proposed new neighborhood, schools, child-care options, the general environment and extracurricular activities. Also to be considered here are the manner in which finances will be affected, and how the change in location will benefit the children's standard of living; and
• A showing that the relocating parent is cooperative and will accommodate the non-custodial parent's access to the children and to their activities.

Conclusion

It is important to discuss these issues with your client as soon as possible, so that he or she may take the steps necessary to meet the criteria set forth by Tropea. With advance planning and a careful gathering of evidence, you and your client can better present the court with the evidence it will need to find that a move is in the child's best interest. As we saw in Verhulst, a general, unspecific presentation to the court is unlikely to give him or her the chance to move to a new location, even if the move might arguably have benefited the child.

Jerome A. Wisselman, a member of this newsletter's Board of Editors, is a partner in the Great Neck firm of Wisselman, Harounian & Associates, P.C. Eyal Talassazan is an associate with the firm.