Tuesday, February 10, 2015

CHILD CUSTODY - RELOCATION ISSUE ON DISTANCES

In agreements, etc., the courts recognize a difference between radial distances and travel distances.

See Carreiro v Colbert 2014 NY Slip Op 51669(U) Decided on November 21, 2014 Supreme Court, Tompkins County Rumsey, J.:

"The Stipulation obligates defendant to pay travel fees to plaintiff if visitation occurs "at a relocated residence of the Mother approximately 200 miles from the Mother's current residence in Nyack, New York" (Stipulation, Article III [p. 8]). Precedent of the Appellate Division, which this court is bound to follow, shows that the Stipulation is not ambiguous, and requires that it be construed as obligating defendant to pay travel fees to plaintiff only if she relocates an approximate distance of more than 200 radial miles from her former residence in Nyack.

In Potier v Potier, 198 AD2d 180 (1993), the parties entered into a Separation Agreement permitting the plaintiff wife to relocate within 60 miles of the Empire State Building. Like the Stipulation at issue in this case, the Separation Agreement in Potier provided only the relevant distance without specifying whether it was to be measured on a straight-line basis or by the actual driving distance (see Record on Appeal, Potier, Vol. I, p. 66 [plaintiff "shall reside within sixty (60) miles of the Empire State Building"]). And, like the facts in this case, the wife relocated to a residence within the distance specified by the parties' agreement, if measured on a radial basis, but beyond the specified distance, if measured by the driving distance. On those facts, the Appellate Division, Second Department, unanimously affirmed the trial court's determination that the plaintiff wife's relocation to a new residence located 77 road miles from the Empire State Building did not violate the terms of separation agreement because it was located less than 60 radial miles therefrom. As a matter of law, having moved a distance of less than 163 radial miles, defendant did not relocate "approximately 200 miles" from her former residence, and she [*3]is not obligated under the Stipulation to pay travel fees to plaintiff."

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