JOHN N. v. MELISSA A., 2024 NY Slip Op 50923 – NY: Co. Supreme Court 2024:
“In herein post-judgment matrimonial action, both parties moved and
cross-moved regarding Mother’s plan to relocate with the parties’ child
too far away for the truly daily parenting time schedule that the
parties themselves (each with counsel) stipulated was in the best
interest of their son. The parties’ young son (the “Child”) has been
diagnosed with special needs and attends a private school in New York
City that meets his special needs. The Mother’s move with the Child is
also in direct violation of the parties’ stipulated provisions regarding
no such move, which stipulation restricted either parents’ ability to
move out of Manhattan with the Child.
Unfortunately, here, Mother first put her “move” plan in action, and
then filed her motion, allegedly for “permission,” when she had already
started the purchase of her home far outside of Manhattan. There were
numerous court appearances on these motions, and extensive briefing, as
well as numerous related motions (all addressed herein). Although the
Court was clear with all that Mother’s ability to move with the Child
was absolutely not certain, and that parties should make every effort to
discuss and to maintain what they had already stipulated was in the
child’s best interests (for both parents to live in close proximity to
each other in Manhattan and for the Child to have daily or almost daily
contact with each parent), Mother nevertheless cancelled her Manhattan
apartment lease one year early, paid a penalty to do so, completed the
purchase of a house in Katonah, and moved there, while telling the Court
that she “had to be” out of her Manhattan apartment by a certain date,
but not telling the Court that she did so voluntarily, let alone that she paid a penalty for her early move-out date.
Mother’s alleged reasoning for this move is not that she is trying to
limit Father’s access to the Child, but rather that she has migraines
in Manhattan that will be alleviated if she lives in Katonah. She
acknowledges that her information is “self reported” to her doctors, and
therefore, she assumes that Father will doubt what she says. (NYSCEF
doc. 4, Def. aff.).
As Attorney for the Child pointed out in clear detail, Mother has presented no medical proof on her moving papers of this condition or this theory (see
NYSCEF doc. 102, Attorney for the Child Affirmation, detailing her
meeting with her young client, information from his school and doctors,
lack of any supporting documentation on Mother’s motions, as well as
importance to the Child of both of his parents).
Then, after that affirmation from Attorney for the Child, then,
Mother finally did present a letter from a doctor on a May 2024 reply on
motion sequence 007 (NYSCEF doc. 118), which letter does not address
her alleged need to move, let alone as far away as she did. Even if the
Court were to accept the alleged medical “proof” submitted here, it does
not meet, let alone require, the solution Mother chose. Even if the
Court were to accept Mother’s theory that she would medically feel
better in a house with a backyard, there is no basis for a house so far
away from her most recent apartment, when there are backyard houses
throughout New York City, from Queens, Bronx, Brooklyn, and Staten
Island, not to mention cities and towns immediately outside New York
City that are not nearly as far away as Katonah. Nor was there any
information about the extent of the alleged improvement that could be
obtained from a move to a backyard-house, nor was there any medical
information about what other treatments or remedies could be considered,
and the comparative effects and migraine reductions of one method
versus another. And even if, with truly no medical evidence submitted
for it, the Court were to somehow accept Mother’s theory that a move to a
backyard-house will be a cure, there is no evidence that either Mother
or her doctor explored any closer location, before selecting a
house in Katonah. Nor does Mother or her doctor address, at all, whether
Mother can live in the backyard-house in Katonah with its alleged
(although not demonstrated) medical benefits, but still travel with the
Child into Manhattan for his parenting-time exchanges with Father,
doctor appointments, and all the other necessary reasons to come with
the Child to Manhattan, and further, in that case, neither Mother nor
her doctor address the medical necessity, benefit or appropriateness of
the move to Katonah from Manhattan with those continuous visits into Manhattan with the Child.
There is also no evidence that Mother meaningfully considered the
effect that this Katonah move would have on the Child, whether on his
relationship with his Father, whom he has consistently seen either every
day, or almost every day for truly years now, or on the Child’s
schooling. Mother has apparently proposed the Katonah public schools as a
new school option for the Child, but did not present any evidence in
her moving papers that she has explored the extent to which that school
would be able to meet the Child’s special needs, let alone whether it
would do so as well as (or even comparably) to the services provided by
the private school where the Child has been enrolled by both parents for
several years. In this case, both parents have affirmed in their
(successful) lawsuits against the New York City Department of Education
for reimbursement of the Child’s tuition that the New York City public
schools are not able to meet the Child’s needs and that his Manhattan
private school [redacted] does. Mother does not present any evidence
that the Katonah public school would be able to meet the Child’s needs
that both parents have stated the New York City public schools could
not, and that his private school does.
The Court was also concerned when Mother, in direct contravention of
the order appointing the Child’s attorney, nevertheless refused to grant
permission for the Child’s attorney to speak with the Katonah schools,
thus preventing the Attorney for the Child from speaking with Mother’s
proposed new school. This was eventually remedied, after the
court appearance on the record, when all that the Child’s attorney could
report about the Katonah school was that they could not speak with her
because of this lack of authorization from Mother. And in the meantime,
Mother gave up her Manhattan apartment (early), moved to Katonah, and
presented her move as done and completed. Her original motion also
lacked the proposed address, although admitting that she was already “in
contract” for the home at the time of her motion “for permission,” nor
the name of the proposed school (Father’s opposition stated that there
are three elementary schools in Katonah, but that Mother would not tell
him which one she is proposing for the Child; his March 2024 affidavit
stated Mother still had not told him the address).
Mother’s gamesmanship and orchestrated timing choices created an
extraordinary problem for her son, his school, his Father, and this
Court. Mother created the timing, and then accelerated it, even as the
motions were pending, all in direct contravention of what both parents
here stipulated for, in great detail, each advised by counsel. As the
Court stated on the record at the June [redacted] 2024 appearance,
Mother’s request to relocate to Katonah with the Child is denied, for
the detailed reasons stated on the record, with written decision to
follow. See NYSCEF docs. 130-33, Decision and Order on Motions
sequence 005-008. That written decision is filed herein, which
incorporates (without necessarily repeating) the reasons already stated
on the record (see Tr).
Specifically, the parties’ 2020 Stipulation (NYSCEF doc. 16), which
was So Ordered by the Court after a 2020 detailed allocution on the
record, states, regarding joint custody:
The Mother and the Father shall have joint legal and
physical/residential custody of [the Child]. The Mother shall be deemed
the residential parent solely for purposes of child support and health
insurance. . .
The Parties shall consult and confer with each other, in
good faith, on major issues relating to [the Child’s] health (including,
but not limited to, medical, therapeutic, and psychiatric treatment,
extended use of prescription drugs for an ongoing illness, and
dental/orthodontic treatment exclusive of annual or routine check-ups or
examinations and ordinary childhood illnesses, ailments, and usual and
customary drug prescriptions for such ordinary childhood illnesses and
ailments), education, child care, summer camp/program, extracurricular
activities, and general welfare (the “major issues”) and use his/her
best efforts to come to an agreement on all major issues described
above. . .
All major decisions affecting the physical and mental
health, discipline, education and schooling (including change in current
schools and selection of schools and colleges, the necessity for
testing and tutors, participation in after school extracurricular
activities and summer activities), and general welfare of the Child
shall be discussed between the Parties before they discuss it with the
Child. It is the Parties’ specific intention that they shall attempt to
resolve all questions relating to the Child by discussion and mutual
consent taking into consideration the Child’s aptitudes and wishes. . .
The Parties will jointly decide the Child’s extracurricular
activities including, but not limited to, enrichment classes, sports
lessons, team participation, music lessons, art lessons, and camp. While
the Parties shall take into consideration the aptitude and wishes of
the Child, keeping in mind his age and level of maturity, the decision
shall be based upon the Child’s best interests. Each Party shall
cooperate and enable the Child’s regular participation in the agreed
upon programs or activities.
Notwithstanding the foregoing, the Child shall not be enrolled in more than two (2) extracurricular activities per semester. . .
The parties stipulated to cooperate in the Child’s best interest:
The Parents shall cooperate with each other to advance [the Child’s] health, emotional and physical well-being.
The parties stipulated to detailed provisions of truly frequent and “unhampered” parenting time access:
Each Parent acknowledges that the Child deserves unhampered
access to both the Mother and the Father, and that the Child shall
benefit most in life by having both a Mother and a Father who play an
important role in his life. Each Parent shall exert every possible
effort to maintain access and contact between the Child and the other
Parent, and to foster a feeling of affection between the Child and the
other Parent. . .
Each Party shall be entitled to attend all of the Child’s
organized and special events that the Child attends or in which the
Child participates, including without limitation, sport matches,
lessons, competitions, practices, awards ceremonies, school events,
activities/functions/concerts, presentations and comparable special or
school events (“Children’s Events”) to which Parents are customarily
invited to attend and/or participate in, whether or not such
school/special events occur during his or her parentingtime as set forth
in this Agreement. . .
In the event the Child is sick and confined to either
Party’s residence for twenty-four hours prompt notice shall be given to
the other Party and the other Party shall have the right to visit with
the Child at the other Party’s residence at mutually convenient times.
The Parties shall notify each other promptly in the event of any
accident involving the Child or serious illness of the Child. . .
Each Parent will ensure that during his/her access time, the
Child will attend school, doctor and dentist appointments, therapy
sessions, regularly scheduled activities and lessons, and other events
mutually agreed to by the Parents including, but not limited to,
birthday parties or other social events. . .
The parties stipulated to a parenting-time schedule, detailed over 15
pages (pages 32-46), which provides, in relevant part, that during the
school year, Father is to have parenting time with the Child on every
Wednesday overnight to Thursday, alternate Thursday overnights to
Fridays, alternate weekends Fridays to Sundays, plus Tuesday or Thursday
dinner visits, plus bringing the Child to school, camp, therapy or
other organized activities every Tuesday, Wednesday, and Thursday, and
alternate Fridays. Parties also stipulated that either parent also had
the right to accompany the Child and the other parent on the mornings
that were not “that” parent’s morning, although, while these motions
were pending, the parties entered into a stipulation vacating that
“accompaniment” portion. In the summer months, the parties stipulated
that Father could extend his alternate weekends to Mondays. Parties also
made a detailed holiday and vacations schedule.
Parties specifically stipulated that this frequent schedule is in the Child’s best interest:
The Regular Weekday/Weekend Schedule shall be exercised by
the Parties with flexibility, good faith and cooperation in an ongoing
effort to achieve their shared goal of nurturing the Child’s
meaningful access to, and relationships with, both Parents, as such is
deemed to be in the Child’s best interests. The Parties agree to be
flexible and reasonable with respect to requests for changes in the
Regular Weekday/Weekend Schedule to accommodate the needs of all
concerned to meet any issues that may arise.
Parties also stipulated that the other would have the right of “first
refusal” if the other one cannot pick up the Child, even if it were
only for a pick up or drop off, truly regardless of the length of time.
Regarding any relocation with the Child (outside of
Manhattan), the parties were very specific that neither parent may do so
without the permission of the other parent or the Court, and it would
be the affirmative obligation of the parent planning such a move to both provide advance notice to the other parent, and then, if there is no consent, to seek court permission:
The Parties agree that with the exception of the Mother’s
relocating with [the Child] within Manhattan, the Mother shall provide
the Father with written notice (email sufficing) of her intention to
relocate with [the Child] a minimum of three (3) months prior to the
Mother and [the Child]’s proposed relocation outside of Manhattan. In
the event the parties do not resolve the issue of the Mother’s
relocation with [the Child] within fourteen days of the Father’s receipt
of written notice of such proposed relocation, the Mother shall have an
affirmative obligation to make a motion on notice to the Father
requesting the Court’s permission to relocate outside of Manhattan with
[the Child]. Such motion shall be made before a justice of the Supreme
Court of the State of New York, County of New York. The Mother and [the
Child] shall not be permitted to relocate from the Mother’s and [the
Child’s] current address, to wit: [redacted], New York, New York (or
such other address within Manhattan) without written order of the Court
which order shall be served immediately and personally on the Father.
The Parties agree that with the exception of the Father
relocating within Manhattan, the Father shall provide the Mother with
written notice (email sufficing) of his intention to relocate a minimum
of three (3) months prior to the Father’s proposed relocation outside of
Manhattan. In the event the parties do not resolve the issue of the
Father’s relocation within fourteen days of the Mother’s receipt of
written notice of such proposed relocation, the Father shall have an
affirmative obligation to make a motion on notice to the Mother
requesting the Court’s permission to relocate outside of Manhattan. Such
motion shall be made before a justice of the Supreme Court of the State
of NewYork, County of New York.
Nevertheless, here, Mother first set her relocation plan in motion,
and then filed her motion “for permission” to do what she already
started to do, and then, without receiving that mandatory Court order,
relocated, allegedly “without” the Child but also, without having a home
for him in Manhattan with her either.
To be clear, the Court cannot prevent either adult parent from
relocating by themselves anywhere they wish in the world. The question
is whether they may do so with the parties’ child, in direct
contravention of the long-negotiated, carefully allocuted, and So
Ordered agreement, which was subsequently incorporated into but not
merged with the parties’ judgment of divorce. Here, Mother moved to
Katonah. It is undisputed that there is no consent for her to do so with
the Child from Father, nor is there a Court order permitting her to
move with the Child.
Crucially on these motions, it undisputed that Father has been
integrally involved in the Child’s life, exercising his parenting time,
taking the Child to school on his mornings, being with him on his
overnights, dinners, weekends, holidays and vacations, joining him at
school for field trips and special days, as well as pick ups and drop
offs. On these motions, Mother suggests that Father’s mornings before
school, if counted as 15 minutes at a time, can just be combined into an
hour later in the week, maybe combined with a previously scheduled
overnight to Father, so that Father does not technically lose any
counted minutes. Parenting time, however, cannot be counted purely as
how many minutes total in a year. There is value to each walk to school,
each bedtime, each dinner, each reading a book together after school,
each time seeing a young child on the sidewalk right after school,
whether they have had a good day or a hard day (or sometimes both all in
one day), and then going home together and talking about that day.
Adding one hour to a full-day weekend visit is simply not the same as
also seeing the child four mornings throughout that week. Importantly,
this is precisely what the parties already stipulated to — this level of
frequent contact. It is undisputed that Katonah is approximately
40-plus miles away from Manhattan, which is a substantial commute,
especially in the morning or during the afternoon rush hour for a child
(whether that child does or does not, as here, have special needs), for
this 40-plus miles between Katonah and Manhattan, that much more so if
there are any traffic delays (and it would not be reasonable to say that
there are no traffic delays on this route). It would not be feasible
for the Child and Father to maintain their daily or near-daily contact,
which Mother implicitly acknowledges by proposing this “clumping” of
parenting time in lieu of father’s frequent parenting time with the
Child that parties stipulated to. For Mother to suggest that this is a
change without consequence strains all logic and credulity. See, e.g., Lipari v. Lipari, 146 AD3d 870, 872
[2d Dept 2017] (denying relocation of 17 miles to Rye from New York
City, where the other parent “had frequent contact with the children,
including substantial time during the week. . . quality and quantity of
the father’s contact with the children during the week would be
substantially impaired”); Schwartz v. Schwartz, 70 AD3d 923, 925
[2d Dept 2010] (denying relocation of 20 miles from Brooklyn Heights to
Staten Island where “father had frequent contact with the children,
including substantial time during the week. . . . the difficulties for
both the father and the children in maintaining their current quality
and quantity of contact while traveling between Brooklyn Heights and the
southernmost point on Staten Island, during morning and evening rush
hours in New York City traffic, is apparent. . . such onerous travel
arrangements would likely affect the children’s willingness to visit him
as frequently as they currently do”).
For the court to modify a custody agreement in the absence of an
agreement between the parties to do so, it is well-established that a
movant must make a sufficient showing of a material change of
circumstances, and then carry the burden of proving that the change
would be in the best interests of the child. Matter of McFarlane v Sapeg, 25 AD3d 766, 766-67 [2d Dept 2024] (citations omitted); Velin M. v Bermit T., 220 AD3d 521, 521 [1st Dept 2023] (citations omitted); Yvette F. v Corey J.G. Sr., 177 AD3d 549 [1st Dept 2019]. See also Brown v McGhee, 227 AD3d 983 [2d Dept 2024] (citations omitted); Alexis A.T. v Gary C.T., 204 AD3d 555 [1st Dept 2022]; Matter of Jose M.C. v Liliana C., 150 AD3d 514, 514 [1st Dept 2017]. “In order to modify an existing custody arrangement, there must be a showing of a subsequent
change of circumstances so that modification is required to protect the
best interests of the child. A parent seeking a change of custody is
not automatically entitled to a hearing but must make some evidentiary
showing of a change in circumstances sufficient to warrant a hearing.” Gurewich v Gurewich, 58 AD3d 628, 629 [2d Dept 2009] (emphasis added). The court, therefore, must focus on the showing, if any, of a change of circumstances that is subsequent to the prior order. See Sergei P. v Sofia M., 44 AD3d 490, 490-91
[1st Dept 2007] (“A parent seeking a change of custody is not
automatically entitled to a hearing. Where parents enter into a formal
custody agreement, it will not be set aside without a showing of a
sufficient change in circumstances since the time of the stipulation,
and unless the proposed modification is shown to be in the best
interests of the child. Furthermore, no court will modify such an order
of custody granted on stipulation, absent such showings.”); see also Tarpey v Tarpey, 77 AD3d 912, 913
[2d Dept 2010] (“Where a voluntary agreement of joint custody is
entered into, it will not be set aside unless there is a sufficient
change in circumstances since the time of the stipulation and unless the
modification of the custody agreement is in the best interests of the
children. Furthermore, a parent who seeks a change in custody is not
automatically entitled to a hearing but must make some evidentiary
showing sufficient to warrant one”) (citations omitted). Indeed, where the moving parent does not meet their burden, their petition “should [be] summarily denied” (Patricia C. v. Bruce L., 46 AD3d 399
[1st Dept 2007] (a “parent who seeks change of custody must make some
evidentiary showing to warrant a hearing; it is not automatically
granted. In light of petitioner’s failure to demonstrate any changed
circumstances since the 2003 order granting custody to the father, or
any evidence that he was an unfit parent, or, for that matter, any
indication that continued custody with him was not in the best interests
of the child, the application for modification should have been
summarily denied.”).
As the Court of Appeals stated in Obey v. Degling, 37 NY2d 768, 770 [1975]:
Custody of children should be established on a long-term
basis, wherever possible; children should not be shuttled back and forth
between divorced parents merely because of changes in marital status,
economic circumstances or improvements in moral or psychological
adjustment, at least so long as the custodial parent has not been shown
to be unfit, or perhaps less fit, to continue as the proper custodian.
The rearing of a child requires greater stability than a roller-coaster
treatment of custody.
“Hearings [regarding a proposed change] have been denied and
modification requests dismissed, where, as here, the allegations were
conclusory and unsubstantiated.” Matter of Newton v McFarlane, 174 AD3d 67, 77 [2d Dept 2019]; Matter of Feliciano v. King, 160 AD3d 854 [2d Dept 2018]. See also Werner v. Mazzenga, 174 AD3d 727
[2d Dept 2019]. Nothing in Mother’s papers “tends to show” that the
other parent “has since [the 2020 Stipulation] become unfit or even less
fit to continue” as joint custodian of the child, and to continue their
current residential parenting-time schedule with frequent and
meaningful time for the child with each parent. See Zima v. Aguirre-Cotliar, 21 AD3d 828 [1st Dept 2005] (citing Obey).
Wherever possible, “[c]ustody of children should be established on a long-term basis.” Obey v. Degling, 37 NY2d at 770.
In this regard, the Appellate Division, First Department, has found
continued stability in the child’s life to be a primary factor. In Matter of Lawrence C. v. Anthea P., 79 AD3d 577 [1st Dept 2010], neither parent had a formal order of custody, although the mother became the de facto
primary custodial parent for a period of years. The appellate court
stated that “`[c]hanges in conditions which affect the relative
desirability of custodians. . . are not to be accorded significance
unless the advantages of changing custody outweigh the essential
principle of continued and stable custody of children.'” Id. at 579, quoting Matter of Bennett v. Jeffreys, 40 NY2d 543, 550 [1976] (other citations omitted).
Therefore, the Appellate Division continued, “`[p]riority, not as an
absolute but as a weighty factor, should, in the absence of
extraordinary circumstances, be accorded to the first custody awarded in
litigation or by voluntary agreement.'” 79 AD3d at 579, quoting Matter of Nehra v. Uhlar, 43 N2d 242, 251 [1977].
“In short, the parent seeking the change in custody arrangements bears
the burden of proof that the change is in the child’s best interests”. Id. at 579 (discussing changing de facto custody, not even custody after a final order or stipulation). See also Boris K. v. Marie E., 176 AD3d 504 [1st Dept 2019].
Thus, the first question is whether Mother, on her papers, has met
this required standard to modify the parties’ stipulation. Here, the
parties specifically stipulated that it is in the Child’s best interest
for him to live in Manhattan near both parents, to have almost daily
in-person parenting time with each parent, and to have each parent be
able to participate in his pickups, drop-offs, school events, doctor
visits, the minutiae of his weeks and weekends.
Mother has not met her burden even for a hearing, for the following
reasons: (i) she has not presented sufficient medical basis for her
alleged change of circumstances at all, filing a cursory medical letter
on a reply, (ii) she did not present sufficient evidence that such a
move, even if it were medically supported, requires a move as far as
Katonah and nowhere closer than would be medically appropriate, (iii)
she did not present any information on whether such a move to Katonah
when coupled with bringing the Child to Manhattan from Katonah for
parenting exchanges and other reasons would still be medically indicated
for Mother (as opposed to not sufficiently medically advantageous or
even contra-indicated due to increased driving for Mother, which driving
she herself offered to do multiple times per week, either right before
or right after the Child’s school in Katonah if the Child were permitted
to relocate, to Father’s home in Manhattan, see NYSCEF doc. 4,
Def. aff. at 11), in other words, Mother alleges that she has a medical
need to live in Katonah and not in Manhattan, while separately saying
that she will drive to the Child to his Father in Manhattan, but she
does not say, nor does her doctor address, whether Mother driving back
and forth to Manhattan is medically indicated for her, under her medical
theory, or whether these drives would cancel any medical benefit she
alleges she will have from the move, and thus, her proposed move and her
proposal to drive the Child to maintain contact with his Father are
either at odds with each other, not sincere, or there is no medical
benefit, (iv) she presents no medical information about planned efficacy
of this alleged medical remedy of a move as compared to other medical
remedies that would not require a move, or such a distant move. Thus, as
Mother has not sufficiently alleged a substantial change of
circumstances (that she now has a medical reason that requires her to
move to Katonah) other than in a conclusory manner, and without either
medical proof, or addressing any of the above issues with her “reason”,
accordingly, there is no reason for the Court to even undertake an
analysis whether a relocation and attendant change in parenting time for
the Child if he were permitted to relocate would be in the Child’s
interest, as the Court may not undertake a renewed best interest
analysis in the absence of a material change of circumstances. If,
however, the Court were to do so, the parties themselves have already
stipulated that the extremely frequent parental contact in the
Stipulation is in the Child’s best interest. Based on truly numerous
appearances and papers in this action, both before and after the
Stipulation, and numerous appearances and papers on herein motions, the
Court does not see any articulated change in the Child’s best interest
away from this frequent contact, which forms the basis of the parties’
stipulation, as stated supra. In addition, there is no credible
information alleged that Father is no less capable of continuing as the
meaningful co-parent that he has been for the Child. A proposed
relocation of the Child to Katonah would cut out Father’s meaningful
parenting contact with the Child, which would not be in the Child’s best
interest, as that interest was already stipulated to by the parties and
So Ordered by the Court, and, out of abundance of caution, reaffirmed
on herein motions.
While acknowledging the long-negotiated and extremely specific
relocation restrictions in the parties’ Stipulation, the Court also
considers the proposed relocation under the Tropea factors. Whether analyzed in concert with the required “changed circumstances” analysis discussed supra, or even purely pursuant to the Tropea factors, here, Mother’s proposed relocation with the Child does not satisfy the Tropea
factors at all, such that not even a hearing would be required, since
there are not sufficient facts alleged by Mother to trigger such a
hearing.
The Tropea factors are:
[C]ourts should be free to consider and give appropriate
weight to all of the factors that may be relevant to the [relocation]
determination. These 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. In the end, it is for the
court to determine, based on all of the proof, whether it has been
established by a preponderance of the evidence that a proposed
relocation would serve the child’s best interests.
[fn] The separation agreements [here] require only that the
custodial parent apply for judicial approval before moving out of a
specified area without making any mention of criteria or standards. A
geographical relocation restriction agreed to by the parties and
included in their separation agreement might be an additional factor
relevant to a court’s best interests determination.
As discussed supra, there is no legally sufficient reason even
stated for the relocation. Instead, what actually happened, is Mother
moved and is now saying that she is in Katonah, so she created her own
changed circumstances by moving (including by giving up her Manhattan
apartment early and telling the Court on the record she “had to be” out
of the apartment). That is not a legal changed circumstance. The alleged
“medical” support for the move was similarly not presented or
addressed, as discussed supra, in detail. Simply stated: there is
no reason for the relocation except for Mother’s preference to do so.
And there is no allegation that the move would enhance the child (or
Mother’s) life “economically, emotionally and educationally.” Id. Indeed, Mother not only did not present any information about the educational options, she blocked
the child’s attorney from even speaking with her new proposed school to
discuss his special educational needs. On the other hand, there is
uncontroverted agreement that if the Child were permitted to relocate to
Katonah that much of his parenting time with Father would no longer be
possible, the very detailed, and very specific frequent contact that
parties stipulated is in the Child’s best interest, and the very
frequent (truly almost daily) that this special-needs boy has been
enjoying since (and before) the parties’ 2020 stipulation. For the Court
to `balance’ the factors, there would have to be some factors
favoring the move. Here, there are no such factors alleged, at all, let
alone in any meaningful manner. Accordingly, there is truly no
`balancing’ for the Court to do, when there is nothing on one side of
the balancing scales, and therefore, there is no basis for a hearing. See, e.g., Cleary-Thomas v. Thomas, 200 AD3d 516
[1st Dept 2021] (“Plaintiff did not provide any evidentiary basis to
show that relocation to Long Island would be in the children’s best
interests given that they attend private school in Manhattan and
defendant, who returned to Manhattan in September 2020, has equal
physical and legal custody that requires transitions every two to three
days. Accordingly, the court properly denied plaintiff’s application, without an evidentiary hearing,
to remove the radius clause and granted defendant’s request that
plaintiff be responsible for transporting the children for his parenting
time while she remains outside the agreed upon radius”); Gravel v. Makrianes, 120 AD3d 815, 817
[2d Dept 2014] (upholding a denial of relocation motion without a
hearing, where “under the circumstances presented here, it was not
necessary for the Family Court to have conducted a full evidentiary
hearing in this matter, as it possessed adequate relevant information to
enable it to make an informed and provident determination with respect
to the best interests of the children”); see, e.g., Hardie v. Hardie, 224 AD3d 474, 475 [1st Dept 2024] (upholding an order not permitting mother to relocate with the child, stating that “wife failed to make a prima facie
case that there were changed circumstances requiring a modification of
the 2018 stipulation of settlement and that the proposed relocation to
Pennsylvania was in the child’s best interest. The court properly
determined that there was no economic necessity for the relocation, the
child’s special educational needs could be adequately addressed in New
York, and the wife’s plan to relocate her parents to Pennsylvania to
provide childcare was tenuous. There was a sound and substantial basis
in the record for the determination that the relocation to Pennsylvania
would not be in the child’s best interest.”); See also Erica B. v. Louis M., 218 AD3d 421, 423
[1st Dept 2023] (while mother did show that there was a material change
of circumstances for her move from New York City to Rochester related
to housing, “we find that the mother failed to establish the second
prong of her prima facie case. . . mother failed to submit sufficient
proof to substantiate her claim that the relocation would enhance the
child’s educational or economic condition, and she has not shown that
the claimed benefits resulting from relocation would outweigh the
disruption in the child’s relationship with the father”); Kessler v. Charney, 206 AD3d 450
[1st Dept 2022] (upholding a relocation determination without a
hearing, where both parents had moved to suburban areas outside of the
city, where “Supreme Court providently exercised its discretion in
determining the mother’s motion to relocate with the child without
holding a hearing, appointing an attorney for the child, or ordering a
forensic examination. Supreme Court, which was operating under time
constraints imposed by the imminent start of the school year, had
sufficient, uncontroverted information before it from the parents’
motion papers to make an informed decision regarding the child’s best
interests.”); Lecaros v. Lecaros, 127 AD3d 1037, 1038
[2d Dept 2015] (upholding a relocation determination without a hearing,
where “the Supreme Court possessed adequate relevant information to
enable it to make an informed and provident determination, without a
hearing, as to whether it was in the children’s best interests to
relocate with the mother to London”). C.f., Louie v. Plissner, 174 AD3d 607, 608
[2d Dept 2019] (error to deny a relocation motion without a hearing
because “the mother demonstrated sufficient merit to the relocation
request to warrant a hearing on so much of her petition as sought to
relocate with the subject child”).
Further, although not determinative on this motion, “it is the rights
and needs of the child that must be accorded the greatest weight,” (Tropea, 87 NY2d at 739), and here, Mother has attempted to present her needs (although, as stated supra, has not made a sufficient showing on those), and has not addressed the child’s needs.
Herein motions only address the move to Katonah (and its
consequences). To the extent that Mother (who only recently completed
this move, just before the end of the Child’s school year), reverses her
move and remains living in Manhattan, Father does not seek any change
in parenting time schedules, nor would there be any request or need for
any such change. See, e.g., Glaser v. McFadden, 287 AD2d 902, 905
[3d Dept 2001] (finding that mother, who requested to move with the
children from New York to Virginia, also stated unequivocally that she
would remain in New York if her relocation request was denied, and
therefore, there was no cited basis to modify parenting time even after
denial of the relocation request). As previously stated in Court, any
interim schedule modifications ordered by the Court in connection with
these motions are only for the situation where Mother remains in Katonah
and does not return to Manhattan.
Currently, it is the school summer for the Child, and now that Mother
represented in Court under oath that she is already living in Katonah
and does not have a current place in Manhattan, the Court had to set a
parenting-time schedule that (hopefully only temporarily) deviates from
the parties’ carefully delineated 15-page parenting time schedule
discussed supra. That summer schedule Interim Order (NYSCEF doc. 141), states, in relevant part:
The mother shall have parenting time with the subject child
on alternating weekends from Friday after camp until Sunday evening drop
off in New York City, at the father’s residence, no later than 7:30pm.
The mother shall have overnight parenting time with the
child on alternate Wednesdays until drop off at camp on Thursday
morning. The mother shall have parenting time with the child every
Tuesday and Thursday from pick up at camp until 7:30pm drop off at the
father’s residence.
This shall be the schedule for the summer of 2024 only.
This Court had also scheduled a hearing for an interim schedule for
when the Child’s school year resumes. For two hearings in a row, Mother
has requested an adjournment, allegedly because of medical reasons,
which the Court has granted. That re-adjourned hearing remains scheduled
for [redacted], which date and time has been confirmed by all. As
stated supra, such a schedule change is only being discussed if
Mother choses to remain in Katonah, as neither Court nor Father seeks to
modify the parties’ carefully negotiated schedule, with which the Child
has been living for years now, seeing both parents frequently, so much
so, that he told his attorney, that he “lives with both of them,”
crediting that he has a home with each parent. [Affirmation by Attorney
for the Child, NYSCEF doc. 102].
The Court would be remiss if it did not also remind Mother that it
would not be helpful to place the Child in a position where he feels he
needs to choose between his parents, instead of enjoying a loving and
guilt-free relationship with both parents who love him, as alleged. The
Court reminds all that “Parental alienation of a child from the other
parent is an act so inconsistent with the best interests of the children
as to, per se, raise a strong probability that the [offending party] is
unfit to act as custodial parent.” Khan v. Potder, 185 AD3d 822, 823 [2d Dept], leave to appeal denied,
36 NY3d 902 [2020]. The Court need not, on these motions, state how sad
it would be to place the Child even further in the middle of these
proceedings, especially at a time when his Mother is either seeking to
or is relocating, and therefore, hopes that the parties support the
Child’s loving relationship with the other parent and do not disparage
the other parent to the Child, or in his presence; the Court hopes that
the parents do not suggest to the Child that he should choose which
parent to live with, or to inquire (in the Child’s presence) if the
other parent will “permit” him to live with the parent allegedly asking
these not-child-appropriate questions in front of the child. If Mother
remains steadfast in her decision to relocate even without the Child,
the Court is hopeful that she will not attempt to make the Child feel
guilty about her choice and for the Child’s continued meaningful
relationship with his father.
Decision and order on the motions has already been filed. This
original Supplemental Order is filed by the Court on NYSCEF, which shall
constitute filing and entry. Plaintiff is hereby directed to file a
Notice of Entry of herein Decision and Order within five days.”