CHILD CUSTODY - RELOCATION PERMITTED WITHOUT HEARING AND THE "SUBURBAN FACTOR"

H.K. v. R.C., Date filed: 2021-07-15, Court: Supreme Court, New York, Judge: Justice Matthew Cooper, Case Number: 305890/13:

"In the wake of the COVID-19 pandemic, there has been a marked return to a demographic shift that has occurred at various times in our city’s history: the move to the suburbs by families with young or school-age children. As a result, this court has seen a significant increase in the number of cases where a divorced or divorcing parent is seeking to leave New York City and relocate with the children over the objection of the other parent. In many instances, the proposed move is to suburban towns in surrounding metropolitan areas like Westchester, Long Island or New Jersey; in others it is to suburban communities in more distant locales like North Carolina or Pennsylvania. In this post-judgment divorce motion, the plaintiff-mother requests permission to relocate with the parties’ nine-year-old child to the village of Scarsdale, in Westchester County. Scarsdale is approximately 10 miles from the New York City border and 20 miles from her current residence in Manhattan’s Upper West Side. The defendant-father, who himself lives in the suburbs, albeit in Northeastern New Jersey, opposes the move.

The resolution of the motion requires the court to make two related but distinct determinations. The first is whether the move to Scarsdale is in the child’s best interests, with the focus on how the relocation will benefit the child weighed against how it will impact the child’s contact with defendant. The second is whether this “best interests” determination can be made summarily on the motion papers and oral argument alone. Although summary disposition offers the only path to a decision being rendered in time for the child to start the new school year, it would represent a major departure from the standard process employed by this court in relocation cases. That process generally includes appointing an attorney for the child, ordering a forensic evaluation, holding an evidentiary hearing, and, if warranted, conducting an in camera interview with the child.

BACKGROUND

The parties have a parenting agreement dated October 28, 2015 (the “Agreement”), which was incorporated into the Judgment of Divorce that was signed on September 19, 2016. Under its terms, the parties have joint legal custody of the child, but it is specified that the child is to “reside primarily with the Mother.” The Agreement provides defendant with a regular access schedule of alternate weekends from Friday at 7:00 p.m. until Sunday at 5:30 p.m., along with one weekly weekday dinner from 6:00 p.m. to 8:00 p.m. It also entitles him to substantial holiday and vacation parenting time.

At the time the parties entered into the Agreement, the plaintiff and child were residing in the Upper West Side apartment where the parties lived during the marriage, while defendant had already chosen to leave Manhattan to live in Livingston, New Jersey, a suburban community some 25 miles west of New York. Plaintiff continues to reside with the child in the Manhattan apartment, and defendant continues to reside in his home in Livingston. Plaintiff’s alternate weekend access takes place in Livingston, requiring him to drive back and forth each time to do the pick-ups and drop-offs. The weekly dinners occur in Manhattan. Plaintiff contends, and defendant does not seriously dispute, that although defendant regularly exercises his weekend and dinner access, he does not avail himself of much of the holiday and vacation time to which he is entitled and rarely partakes in the child’s everyday activities.
Included in the Agreement is a “relocation clause.” It states that “the Mother shall not relocate her residence outside of Manhattan without the Father’s consent, or an order of the Court.” It further provides that plaintiff must give defendant 60 days’ notice of her intent to relocate, and that the notice shall include “proposed modifications of the pick-up and drop-off provisions.”

On January 4, 2021, plaintiff sent an email to defendant advising him of her intent to relocate to Scarsdale. She prefaced the email by stating that the COVID-19 pandemic “has devasted NYC” and that “thousands of families have already left the city, including more than 100 students from [the child's school] alone.” Plaintiff went on to say that she feared that this “exodus out of the city” would result in lasting damage to the public school system and otherwise “negatively impact [the child] and his future.”

Plaintiff included in her email an explanation as to why she believed Scarsdale was the place that could best meet the needs of their growing child — educationally, socially, and in terms of overall quality of life — while at the same time affording her the short work commute into Manhattan necessary to balance her employment and parenting duties. With regards to the commute, she pointed out that Scarsdale has frequent and direct train service to Grand Central Station and that her office immediately adjoins the station.

In her email to defendant, plaintiff further emphasized that the driving time between defendant’s home in New Jersey and Scarsdale was only slightly longer than that between the Upper West Side, thereby ensuring that there would be little, if any, interference with his access. Additionally, as an accommodation to defendant, plaintiff offered to modify the pick-up and drop-off provisions of the Agreement by assuming responsibility for transporting the child to and from Livingston on one of the alternate access weekends each month.

Defendant responded to plaintiff by email on January 12, 2021. In his email, he informed plaintiff that he did not agree to her relocating to Scarsdale “or any location outside of Manhattan other than Northeastern New Jersey.” Plaintiff subsequently explained that a relocation to New Jersey would be impractical as the lengthy commute would severely interfere with her ability to attend to the child’s needs the way she always has.

Upon defendant’s refusal to consent to her plan for the relocation to Scarsdale, plaintiff sought court permission to do so by way of the instant motion, which was brought by Order to Show Cause on March 8, 2021. After having had the matter fully briefed and the parties engage in protracted but ultimately unsuccessful settlement talks, the court heard oral argument on June 15, 2021. This decision follows.

DISCUSSION

Is the Proposed Move in the Child’s Best Interests?

Any discussion of parental relocation invariably cites, as it should, the landmark decision by our Court of Appeals in Matter of Tropea v. Tropea, 87 NY2d 727 (1996). The reasons for this are twofold. One is that Judge Titone’s decision contains an abundance of memorable and oft quoted passages that, despite the profound changes that have occurred in the way we look at families and deal with parenting, ring as true today as they did 25 years ago. These include the hard-truth description of the impact divorce has on parenting: “[l]ike Humpty Dumpty, a family, once broken by divorce, cannot be put back together in precisely the same way” (id. at 740); the recognition of the supremacy of children’s interest over those of a parent in matters such as this: “[c]hildren are not chattel, and custody and visitation decisions should be made with a view toward what best serves their interests, not what would reward or penalize a purportedly ‘innocent’ or ‘blameworthy’ parent” (id. at 742); the emphasis on the unique nature of every relocation case (“…each relocation request must be considered on its own merits with due consideration of all the relevant facts and circumstances and with predominate emphasis being placed on what outcome is most likely to serve the best interests of the child” (id. at 739); and finally, the acknowledgment of just how difficult these disputes are for those who must decide them: (“[r]elocation cases…present some of the knottiest and most disturbing problems that our courts are called upon to resolve” (id. at 736).

The other reason Matter of Tropea remains so essential is that it singlehandedly changed the standard for relocation. Previously, courts had applied a formulaic approach whereby if it could be shown that the non-moving parent would suffer a disruption of “regular and meaningful access” with the child as a result of the relocation, the parent seeking it would have to demonstrate “exceptional circumstances” to justify the move. Tropea directed courts to take a more multifaceted “best interests” approach requiring the consideration of a wide range of factors, with those most affecting the “rights and needs of the children [to be] accorded the greatest weight” (id. at 739). While many of the factors are enumerated, such as “each parent’s respective reasons for moving and opposing the move” and “the degree to which the custodial¹ parent’s and the child’s life may be enhanced economically, emotionally, and educationally” (id. at 741), the decision makes it clear that courts are free to consider such other factors as the circumstances of the case may require in order to determine what is in the child’s or children’s best interests.

In making her case for moving to Scarsdale, plaintiff relies initially on two factors that are not to be found in Tropea: one that might be called the “COVID factor” and the other the “suburban factor.” With regards to COVID, plaintiff, both in her email to defendant and her moving papers, paints a dispiriting view of New York City as it appeared at the time: schools closed and businesses shuttered, and with people fortunate enough to have the ways and means to do so fleeing the city in droves. Happily, plaintiff’s apocalyptical fears were transitory. With mass vaccination and other measures bringing the virus more under control, the New York of now — schools open, businesses resuming, and the population returning — is far different from that of January 4, the date plaintiff gave notice of her intent to move, or even March 8, the date she brought her relocation motion. Accordingly, the COVID-19 pandemic, as things stand now, cannot be viewed as a factor favoring the relocation.

The “suburban factor,” which most often includes an educational enhancement component, is more availing. As raised here and asserted in similar cases before this court and others, it can be summarized succinctly as this: the prospect of good public schools, backyard barbeques, bicycles in the driveway, and carpools (see e.g. Matter of S.F. v. G.F., 26 Misc 3d 1207(A) [Fam Ct NY County, 2009]). The problem with using this factor as a justification for a relocation is that it calls upon the court to make what is, in effect, a value judgment as to the relative merits of suburban life versus city life, something that courts are rarely in the position to do or, for that matter, should do. It also requires a court to assess the quality of one school system compared to another, again something that courts in a case like this are generally not in a position to do (see Pamela T. v. Marc B., 33 Misc 3d 1001, 1011 [Sup Ct NY County, 2011]). Fortunately, this court need not wrestle in this instance with those thorny issues. This is because defendant, having himself chosen to accept the benefits of suburban life, is scarcely in the position to complain that plaintiff wants those same benefits for the child and herself.

Next to be considered in this best-interests analysis is each parent’s respective reasons for seeking or opposing the move, one of the factors specifically mentioned in Tropea. This factor is decidedly in plaintiff’s favor. Even if one might question whether a move to a suburban community like Scarsdale would, in the end, prove as beneficial as plaintiff hopes, plaintiff clearly believes that it will. In fact, she appears so committed to doing what she perceives to be the best course of action for the child that she is willing to modify the pick-up and drop-off provisions of the Agreement in defendant’s favor.

Defendant’s reason for opposing the move, on the other hand, seem far more focused on his own needs rather than the child’s. Other than voicing the opinion that the child is “doing well” in his current school and home, and suggesting that the city offers a richer, more multicultural, experience than Scarsdale (a suggestion that sounds particularly disingenuous coming from someone living in Livingston, New Jersey with young children of his own), his major concern centers on the increased length of his commute. Although the change might very well make defendant’s life somewhat more difficult, especially considering that he is a doctor with a practice in New Jersey and that he now has a second family there, there is nothing to indicate that it would make it unduly difficult. Whatever increase there is in the driving time as a result of the relocation from Manhattan to Scarsdale can be measured in minutes rather than hours, and plaintiff has shown that she is prepared to relieve defendant of a good part of that driving. If Tropea teaches us anything, it is that striving to do what is best for a child of divorce requires significant sacrifice from both parents.

In the final analysis, the proposed move here of 20 miles will have little to no impact on either the quality or quantity of defendant’s parenting time with the child. Defendant cites to cases where courts have disallowed even very short child relocations (see e.g. Lipari v. Lipari, 146 AD3d 870 [2d Dept 2017); Schwartz v. Schwartz, 70 AD3d 923 [2d Dept 2010]). These cases, as well as the above referenced Matter of S.F. v. G.F (relocation denied from Manhattan to Scarsdale where father was “hands-on” and had “day to day involvement” with the child), share one salient fact: the move threatened to change the fundamental nature of the non-moving parent’s relationship with the child, a relationship characterized by the parent’s deep involvement in the child’s everyday life. While defendant by all indications is a good and loving father, there is no indication that he has that level of everyday involvement. Instead he has always been a parent who sees his child largely on alternate-weekends and for one midweek dinner.

The record clearly demonstrates that the child’s move to Scarsdale will not alter defendant’s access schedule in any measurable way. Coupled with the other factors that have been discussed, this compels the court to conclude that the proposed location is in the child’s best interests and should be allowed.

Is the Court Able to Permit the Relocation Without a Hearing?

Ordinarily, a hearing is required where matters of custody are concerned. This is because such “determinations require a careful and comprehensive evaluation of the material facts and circumstances in order to permit the court to ascertain the optimal results for the child (S.L. v. J.R., 27 NY3d 558, 563 [2016]).” This is equally true for relocation cases, where the “weight of the interests as stake” (id.) can be every bit as high as in any child custody proceeding (see Matter of Conroy v. Vaysman, 191 AD3d 977, 980 [2d Dept 2021] ["(t)he court erred in not conducting a best interests analysis under Matter of Tropea. Further, as facts essential to the best interests analysis, and the circumstances surrounding such facts, remain in dispute, a hearing is required"]).

Inasmuch as relocation cases generally involve hotly contested factual scenarios, which often include disputes as to the child’s needs and wishes, not only is a hearing necessary, but so is the appointment of an attorney for the child and a forensic evaluator. Without their input, the court would be unable to make the required “careful and comprehensive” determination as to the child’s best interests.

This case, however, illustrates the overriding principle that there are “no absolutes” in child custody cases (Friederwitzer v. Friederwitzer, 55 NY2d 89, 93 [1982]). Here, there simply are no disputes as to “facts essential to the best interests analysis and the circumstances surrounding such facts” that rise to the level of requiring an attorney for the child, a forensic evaluation, or a hearing. All that the court needs to know — be it distances, driving times, the parties’ respective reasons for seeking or opposing the move, and the role each parent plays in the child’s life — can readily be ascertained from the motion papers alone. Thus, this is one of those rare instances where the determination on relocation can be made without the need for further proceedings.

CONCLUSION

Having determined that the proposed move to Scarsdale from Manhattan will not unduly interfere with defendant’s rights of parental access with the child and that the move is in the child’s best interests, the court grants plaintiff’s motion seeking relocation upon the terms she proposes. Plaintiff is directed to submit an order to this effect.

Footnotes

1. Tropea and relocation cases both prior and subsequent generally refer to the parent who is seeking to relocate as the "custodial" parent and the parent who is remaining behind as the "noncustodial" parent. With joint custody becoming as prevalent as it is now (this case being one of them), the references to custodial status are becoming increasingly less applicable."