J.M. v S.M.

[*1] J.M. v S.M. 2012 NY Slip Op 51689(U) Decided on July 27, 2012 Supreme Court, Monroe County Dollinger, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 27, 2012
Supreme Court, Monroe County

J.M., Plaintiff,

against

S.M., Defendant.



06/00034



Marilee Green Sercu, Esq.

31 North Main Street

Pittsford, New York 14534

Attorney for Plaintiff

Ellen J. Coyne, Esq.

300 Linden Oaks, Suite 100

Rochester, New York 14625

Attorney for Defendant

Richard A. Dollinger, J.

In this matter, the court must decide whether a mother who wants to move from Rochester to Albany with the parties' two children, has established a prima facie case to justify a trial on the relocation under the Tropea doctrine. The parties have two daughters, ages fifteen (15) and thirteen (13). They entered into a separation agreement in 1996 and were divorced thereafter. Under the terms of the separation agreement, the parties share joint legal custody. The mother has primary physical residency while the father has visitation periods with the children on two mid-week evenings and Saturdays.

The mother plans to marry her fiancé who resides in Albany, New York and earns an annual salary in excess of $180,000. He is unable to relocate outside of the Albany area because he is in a highly-specialized field, and the duties and responsibilities of his position cannot be performed from another location. The mother is presently employed in a school district in Monroe County where her annual salary is in excess of $60,000. She now plans to resign from that position and move to Albany. While she intends to seek employment in Albany based on the children's school schedule, she claims that it is not necessary for her to obtain a new job because of the financial position of her fiancé. The mother and her soon-to-be husband have purchased a home in Delmar, New York, a suburb of Albany. The new home is located 222 miles from her current home (the former marital residence).

The separation agreement explicitly prohibits either parent from establishing a [*2]primary residence more than fifty (50) miles from the former marital residence until the children have completed their high school education, except by mutual consent or court order. As required by the stipulation, the mother notified the father of her intent to move with the children to Albany. Feathers v. Feathers, 95 AD3d 1622 (3rd Dept. 2012). After the father refused to consent to the proposed move, the mother filed the current application to modify the separation agreement, to permit her to relocate the parties' minor children. The father filed a cross-petition seeking a change in primary residency.

In considering the wife's request, this court cannot ignore the strong language in the separation agreement regarding relocation of the children. While it clearly envisioned that the wife may someday consider relocation, it is unambiguous in its requirement that no change in location was permitted prior to the children's graduation from high school unless by consent or a court order. It is apparent that the couple understood the importance of stability and consistency in the daughter's lives in Rochester when they drafted this prohibition language. The husband bargained for a significant restraint on his wife's ability to relocate without his permission prior to his daughter's high school graduation. Under the circumstances, if the wife elects to request a hearing on this question, this strong language requires that the wife establish by clear and convincing evidence that the move is in the best interests of her daughters.

The mother argues that the move to Albany is in the best interests of the children because the father has rarely exercised his visitation rights. Specifically, she claims that at least a quarter of the father's scheduled visits with the children do not occur. According to the mother, the father is not an integral part of the children's daily lives, as he has sporadically participated in the children's activities since the parties' divorce. In addition, she argues that the father does not maintain proper sleeping arrangements for the children in his residence as one child must sleep on the couch and the other on a futon. The mother claims that the proposed relocation will improve the children's education and overall quality of life. She avers that she purchased a home in Delmar, New York based on the positive recommendations from employees of the New York State Education Department about the school district there. She argues that the children will have many more opportunities available to them in Albany as opposed to the Rochester area. Lastly, the mother argues that her fiancé's income will allow her to spend more time with the children.

The mother is willing to modify the separation agreement to create a visitation schedule that provides the father with additional time with the children over the holidays and summer vacation as well as two monthly visits.

Conversely, the father argues that the move to Albany is not in his daughters' best interests. He counters that he rarely failed to exercise his visitation rights, and that he is actively involved in his children's lives. He contends that the proposed relocation would interrupt the children's education, as the older child has only two years remaining before she graduates from high school. He also avers that this long-distance move would impede the development of his relationship with the children during the critical years before they attend college. He argues that the children have no support network in Albany, whereas in the Rochester area, the children have a strong local family support system. Moreover, the father argues that the move would not be economically beneficial to the children because the mother plans to resign from her position, forfeiting [*3]an annual income in excess of $60,000, and further, her fiancé has no financial obligation to support the children. He argues that the children would not be educationally enhanced by the proposed relocation because their current school district is comparable to the school district in Delmar, New York, which may be only slightly higher in academic rankings. He contends that the move will have a detrimental emotional impact on the children, as they will be without their extended family, without their friends, and most importantly, without the presence of their father. He claims that given the mother's history of thwarting his access to the children, this behavior would only be aggravated by the proposed long-distance relocation, to the extent that access will be greatly minimized or prevented altogether. Lastly, but perhaps most significantly, he argues that the parties' intent in drafting the separation agreement was to maintain a joint custodial and co-parenting arrangement through high school for the benefit of their children.

The party seeking permission for a child to relocate with him or her has the burden of establishing by a preponderance of the evidence that the proposed relocation will serve the child's best interests. Tropea v. Tropea, 87 NY2d 727, 740-41. In making the "best interests" determination, the court must consider the following factors: "each parent's reasons for seeking or opposing the move, the quality of the relationships between the child and the custodial or noncustodial parent, 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 feasability of preserving the relationship between the noncustodial parent and the child through suitable visitation arrangements." Tropea v. Tropea, 87 NY2d 727, 741 (1996). In addition, courts may take into account other considerations such as the good faith of the parents in requesting or opposing the relocation, the child's respective attachments to the custodial or noncustodial parent, the possibility of devising a viatication schedule that will enable the noncustodial parent to maintain a meaningful relationship with the child, the quality of life that the child would have if the relocation were permitted or denied, the negative impact, if any, from continued or aggravated hostility between the custodial and noncustodial parents, and the impact that the move may have on extended family relationships. Tropea v. Tropea, 87 NY2d 727. Moreover, the court may consider the demands posed by the mother's new marriage as well as her desire to preserve her family in evaluating the relocation request. Scheffey-Hohle v. Durfee, 90 AD3d 1423, 1426 (3rd Dept. 2011); see also Matter of Vargas v. Dixon, 78 AD3d 1431, 1432 (3rd Dept. 2010). No single factor is dispositive in the Tropea analysis. Thomas v. Thomas, 79 AD3d 1829, 1830 (4th Dept. 2010). Thus, "each relocation request 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." Tropea v. Tropea, 87 NY2d 727, 739 (1996). As the party seeking to relocate, the mother bears the burden of establishing by a preponderance of the evidence that the move would be in the child's best interests. Scheffey-Hohle v. Durfee, 90 AD3d 1423, 1426 (3rd Dept. 2011). [*4]Here, the court must determine whether the mother has established a prima facie showing, entitling her to a hearing on the issue of the custodial parent relocating to Albany with the children.

Relocation cases "present some of the knottiest and most disturbing problems that the courts are called upon to resolve." Tropea v. Tropea, 87 NY2d 727, 739 (1996). In such cases, the interests of a custodial parent who wishes to relocate are often in direct opposition with those of the noncustodial parent who wishes to maintain frequent and regular contact with the child. Id. Most importantly, the court must weigh the interests of the children, which may or may not conflict with those of one or both of the parents. Id.The first factor in the Tropea analysis is each parent's reasons for seeking or opposing the proposed move. Tropea v. Tropea, 87 NY2d 727, 739 (1996). The father alleges that the move's sole reason for seeking the move is her desire for a "fresh start" in her second marriage. This factor standing alone, is "insufficient" to warrant the move. Jones v. Tarnawa, AD2d 870, 871 (4th Dept. 2006); see also Sawyer v. Sawyer, 242 AD2d 969, 972 (4th Dept. 1997). But the Tropea court observed that "the demands of a second marriage and the custodial parent's opportunity to improve his or her economic situation, may also be valid motives that should not be summarily rejected, at least where the over-all impact on the child would be beneficial and "the custodial spouse's remarriage or wish for a "fresh start" may suffice to justify a distant move" if it results in "strengthening and stabilizing the new, post-divorce family unit." Tropea v. Tropea, 87 NY2d 727, 739 (1996); see also Alaire K.G. v. Anthony P.G., 86 AD3d 216, 225 (dissenting opinion) (1st Dept. 2011). The mother argues that she is requesting to relocate with the children to improve the children's overall quality of life. The mother avers that the children will have many more opportunities available to them in Albany including a superior education.

On this aspect of the Tropea analysis, the mother has at least raised a prima facie suggestion that the move would improve the lives of the daughters. The father's response is equally weighty because of his arguments regarding the loss of the extended family, but the mother does raise sufficient facts on this aspect of the analysis to justify a hearing.The second factor is the quality of the relationships between the children and the custodial or noncustodial parents.Tropea v. Tropea, 87 NY2d 727, 739 (1996). Here, the mother has been the girls' primary care giver since the parties' divorce in 2006. As a result of this, the mother argues that the girls share an extremely close relationship with their mother. The parties dispute the degree of the father's involvement in his daughter's lives and particularly, the extent to which he has exercised his visitation rights in the past. Because the role of the father in his daughter's lives is disputed, the resolution of this issue could be crucial in resolving the balancing of interests test under Tropea. The mother's affidavit sets forth a prima face case and requires a hearing on this aspect of the analysis. In addition, because the opinion of the daughters could be important, this court will, if requested by the parties, appoint an attorney for the daughter, to be paid by the mother, for purposes of sampling their views on this matter. But, the court orders the mother and father not to discuss the appointment of the attorney for the daughters with either of them and neither party should inform the daughters as to who is paying their attorneys costs. [*5]

Although the mother's reply papers state that the children are in favor of the move, there is no evidence of any attorney advising the children in the record. But, even assuming arguendo, that the children want to move, their wishes are not determinative. Holtz v. Weaver, 94 AD3d 1557, 1558 (4th Dept. 2012); Thomas v. Thomas, 79 AD3d 1829, 1830 (4th Dept. 2010).

The third factor is the impact of the move on the quantity and quality of the child's future contact with the noncustodial parent. Tropea v. Tropea, 87 NY2d 727, 739 (1996). While the effect of the relocation on the relationship between the child and the noncustodial parent remains a concern, it is not the main one. Alaire K.G. v. Anthony P.G., 86AD3d 216, 219 (1st Dept. 2011). Rather, the interests of the children must be accorded the most weight. Tropea v. Tropea, 87 NY2d 727, 739 (1996); Alaire K.G. v. Anthony P.G., 86AD3d 216, 219 (1st Dept. 2011). The proposed move is not insignificant as the children's new home would be 222 miles, or approximately four hours, from their father. As a result, the move will deprive the father of his mid-week visits as well as his alternating weekend overnight visits. In addition, it would no longer be feasible for the father to attend the children's school and extracurricular activities. The mother claims that the father's overnight visits with the children could still be effectuated through an adjustment o f the parties' visitation schedule. Although not set forth in detail, the extended visitation schedule proposed by the mother may mitigate the impact of the relocation on the children's ability to maintain a meaningful relationship with their father. Alaire K.G. v. Anthony P.G., 86AD3d 216, 219 (1st Dept. 2011).

The extent to which the custodial parent's and children's life may be enhanced economically, emotionally, and educationally by the move is also a worthy factor. Tropea v. Tropea, 87 NY2d 727, 739 (1996). The mother argues that the children's lives would be economically enhanced by virtue of living in a home with an annual income of $180,000 as opposed to living in a home with an annual income in excess of $60,000. As for the emotional benefit of the proposed move, the mother claims her new financial situation will enable the mother to work on a part-time basis and structure her schedule around the children's school schedule. She contends that the children would have an opportunity to witness and be involved in a functioning, loving family. The father's challenge to these assertions also requires a hearing. The loss of contacts with the extended family, the loss of long-time friends, and the extent to which the daughters lives would be enhanced are all issues subject to a hearing.

Another factor in the Tropea analysis is the feasibility of maintaining the relationship between the noncustodial parent and the child through appropriate visitation arrangements. Tropea v. Tropea, 87 NY2d 727, 739; 665 NE2d 145 (1996). The right of routine visitation between the child and the noncustodial parent is a valuable and substantial one. Sawyer v. Sawyer, 242 AD2d 969, 972 (4th Dept. 1997). The record here reveals disputes over the time and extent of visitation in the past. The father voices valid concerns about preserving his relationship with the children when the children are a four-hour drive from his Rochester apartment. The mother proposes a visitation schedule that may provide the father with additional time with the children over the holidays and summer vacation as well as two monthly weekend visits. While the [*6]loss of the mid-week and alternative weekend contacts is not insignificant, the court recognizes that a visitation schedule could be devised that would allow for the continued development of a meaningful relationship between the father and daughters. Wisloh-Silverman v. Dono, 39 AD3d 555, 557 (2nd Dept. 2007).

The court concludes that the mother has established a prima facie showing for the proposed relocation under the factors of Tropea. The mother is entitled to an evidentiary hearing to provide clear and convincing evidence that the proposed relocation is in the best interests of the children.

The foregoing constitutes the decision of the court and, if requested, a hearing will be scheduled as soon as practical.

Dated: July 27, 2012._________________________________

Hon. Richard A. Dollinger, A.S.C.J.