A woman who defied one judge by briefly moving from Long Island to Florida with two of her children could not persuade another judge that such a move would be in the best interests of her children.
Family Court Judge Bernard Cheng in Suffolk County rebuffed Marie Schulz’s attempt to relocate to Florida with her 12-year-old daughter and 7-year-old son, deciding that relocation “would essentially end” the children’s relationship with their father, William Schulz.
In so ruling, Cheng held that Marie—who had moved to Florida in August 2011 with the children despite another judge’s denial of her earlier relocation attempt—had not presented a persuasive justification for relocation.
Though the “usual relocation case” involves “an unexpected change” like a sudden loss of employment, Cheng wrote in Schulz v. Schulz, V-18737-09/11F, “In the case at bar the change in circumstance is that the mother moved to Florida in contradiction of the Court’s prior order. The Court is less than impressed with this argument.”
The couple is still married and has no formal separation agreement in place, said William’s attorney, Vesselin Mitev of John Ray & Associates in Miller Place.
A February 2010 court order gave custody to Marie and permitted William’s visitation. William suffered a brain injury in an automobile accident that affected his motor skills and prevented him from being in enclosed spaces for long amounts of time. The children’s visits with William are supervised by his own mother.
In April 2010, Marie first attempted moving with the two children to Lake Placid, Fla., to live with her boyfriend, Hector Diaz, who is self-employed and working in the home improvement field. In that attempt, Marie also wanted her third, eldest child to move
Then-Family Court Judge Barbara Lynaugh denied Marie’s application saying that relocation did “not seem at all feasible.”
Lynaugh questioned Marie’s plan to move to a “small home with a man neither she nor the children know very well and whose financial resources are unknown.” Marie “displayed a propensity for poor parenting decisions,” said Lynaugh.
Nevertheless, Marie moved in August 2011 with the two children.
William filed a writ of habeas corpus and petition for contempt. Cheng ordered Marie to return the children to Long Island by March 2012 but denied the contempt motion.
Marie sent the children to Diaz’s cousin, who was living in New York, but she stayed in Florida; in September, Marie moved back to Long Island to stay with the children, said Mitev.
Turning to Marie’s current application, which was opposed by William, Cheng noted that Marie “failed to demonstrate an unanticipated change in circumstance.”
Nevertheless, he held a hearing to determine if the proposed move was in the children’s best interest pursuant to the 1986 Court of Appeals ruling in Tropea v. Tropea, 87 NY2d 727.
The Tropea court outlined factors courts must weigh, such as parents’ reasons for seeking or opposing relocation, the potential emotional enhancement for the custodial parent and children, and the “feasibility” of maintaining or arranging visitation between the non-custodial parent and children.
Marie claimed she has to move for economic reasons, with the cost of living in Long Island being much too high.
Nevertheless, she admitted to earning less money in Florida, where she was paid $7.60 an hour in the housekeeping department of a healthcare facility. In New York, she earned $13 an hour, the judge noted.
Marie said she wanted to attend school in Florida to become a certified nurse’s assistant, which her employer would pay for. Such an opportunity would not be available to her in New York, she testified, although she admitted she did not look into similar opportunities in New York.
Marie testified that Lake Placid, Fla., was a small country town where the local church was central to the community, offering, for example, a youth center free of charge.
Moreover, she said, Florida has a program where qualifying students could go to college for free. Marie said she could not afford these activities in New York, but Cheng pointed out there was “no testimony” on whether Marie checked on the cost of such opportunities in New York.
Cheng acknowledged Marie’s life could be emotionally enhanced by the move, adding that she was pregnant with Diaz’s child.
But the judge noted that the children’s emotional life “would certainly be diminished” by decreased time with their father.
Conducting an in camera interview with the children, Cheng said his impression was “that the children did not have emotional ties to Florida.”
Cheng said Marie offered “ample” visitation opportunities. But Cheng noted William could not travel to Florida with his condition and said he had “absolutely no confidence that Ms. Schulz is capable of, or willing to actually follow through on her proposal.”
In an interview, Mitev said he was pleased with the ruling, which, he said stood for the proposition that “one cannot self-engender a change in circumstances by unilaterally relocating and putting the burden on the other spouse to get the kids back.” William is now considering divorce, Mitev added.
Francine Moss of Judd & Moss in Ronkonkoma represented Marie and did not respond to a request for comment.
Catherine DeSanto of Riverhead, the court-appointed attorney for the children, declined to comment,
@|Andrew Keshner can be contacted at email@example.com.