Tuesday, February 21, 2017

CHILD CUSTODY - RELOCATION FROM ONE END OF LONG ISLAND TO THE OTHER



Many people in the New York metropolitan area colloquially refer to Long Island (the Nassau–Suffolk county area) as The Island. But The Island is the 11th largest island in the United States and the 149th-largest island in the world—larger than the 1,214 square miles of the smallest U.S. state, Rhode Island.

From Floral Park, New York to East Hampton is about 90 miles and over a 90 minute drive. So when one seeks to relocate but claims it is not a big relocation because they are remaining on The Island, there will be hurdles to pass as illustrated in DeFilippis v. DeFilippis, 2017 NY Slip Op 147 - NY: Appellate Div., 2nd Dept. 2017:

"The parties married and subsequently had two children. In 2014, the plaintiff commenced this action against the defendant for a divorce and ancillary relief. While the action was pending, the plaintiff sought to relocate with the children from Floral Park to East Hampton. The plaintiff contended that this relocation would enhance the children's lives economically, emotionally, and educationally. The defendant opposed the relocation, contending that if the children moved to East Hampton he would be unable to remain involved in their daily lives, school, or extracurricular activities, as he would see them only on the weekends. The Supreme Court granted the plaintiff's relocation motion, and the defendant appeals. We reverse.

When a parent seeks to relocate with a child, "this Court's authority is as broad as that of the hearing court, and a relocation determination will not be permitted to stand unless it is supported by a sound and substantial basis in the record" (Matter of Caruso v Cruz, 114 AD3d 769, 771-772). The parent seeking to relocate must "establish[ ] by a preponderance of the evidence that a proposed relocation would serve the child's best interests" (Matter of Tropea v Tropea, 87 NY2d 727, 741). Each case "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). Although the parents' rights are significant, the child's needs and rights "must be accorded the greatest weight," and the effect of the relocation on the noncustodial parent's relationship with the children "will remain a central concern" (id.). Additional relevant factors "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 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 child's life may be enhanced economically, emotionally and educationally by the move, and the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements" (id. at 740-741).

Here, the Supreme Court's determination that the plaintiff could relocate with the children was not supported by a sound and substantial basis in the record (see Matter of Caruso v Cruz, 114 AD3d at 772), as the plaintiff did not establish by a preponderance of the evidence that the proposed relocation would serve the children's best interests (see Matter of Tropea v Tropea, 87 NY2d at 741). The plaintiff's evidence that relocating would enhance her life and the children's lives economically was tenuous at best (see Rubio v Rubio, 71 AD3d 862, 863), and the court's finding that the plaintiff could become self-supporting and contribute to the children financially if she relocated was thus speculative and not supported by a sound and substantial basis in the record (see Matter of Caruso v Cruz, 114 AD3d at 772). Moreover, the relocation would negatively impact the quantity and quality of the children's future contact with the defendant, which weighs against granting relocation in this case (see Matter of Tropea v Tropea, 87 NY2d at 741). The defendant presented evidence of his involvement in the children's daily lives, school, and extracurricular activities. If the plaintiff was permitted to relocate with the children to East Hampton, the defendant would no longer be able to see the children midweek or remain involved in their many activities (see Quinn v Quinn, 134 AD3d 688, 689; Schwartz v Schwartz, 70 AD3d 923, 925; cf. Matter of DeCillis v DeCillis, 128 AD3d 818, 820). Finally, the plaintiff did not establish by a preponderance of the evidence that her proposed relocation would enhance the children's lives emotionally or educationally (see Matter of Tropea v Tropea, 87 NY2d at 741). Since the plaintiff did not meet her burden to demonstrate that relocating was in the children's best interests, we reverse the order granting relocation and deny the plaintiff's relocation motion."

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