Editors’ Note: This article has been updated to reflect a Correction.
ALBANY – A lawyer who left Ithaca to accept a position clerking for a New Jersey judge has been stripped of custody of her three-year-old son after an appellate court agreed that she “clearly attempted to thwart and frustrate the father’s visitation.”
Michelle V. v. Brandon V., 516344, involving an attorney, an assistant professor of mechanical and aerospace engineering at Cornell University and the child they had during a brief marriage, came before an appellate panel after the trial judge held that the woman’s relocation violated and undermined their divorce agreement.
An Appellate Division, Third Department, panel unanimously agreed with Tompkins County Family Court Judge M. John Sherman’s (See Profile) conclusion that the mother did not make a genuine effort to find a job in the Ithaca area, was “unduly combative and aggressive” toward the father and is less credible. They also rejected Michelle’s assertion that the trial judge was biased.
“Overall, the court afforded the mother wide latitude as a pro se law school graduate, and our review of the record finds no support for her claim that the court’s decision was affected by any bias,” Justice Edward Spain (See Profile) wrote for the court.
According to Cornell University officials, Michelle was a student at a midwestern law school who was allowed to take courses in Ithaca. However, she is not a Cornell graduate, according to the university.
Records show that Michelle and Brandon were married in 2009 and had a child, Ethan, the following July, shortly before the mother started her third year of law school. They separated in 2011, and their joint custody separation agreement, later incorporated into a judgment of divorce, granted the mother physical custody, the father weekly parenting time and prohibited either from relocating without consent of the other or the court.
Just months after signing the agreement, Michelle accepted a job offer in New Jersey and relocated over the objections of the father. Sherman permitted Michelle to relocate temporarily and pending a hearing, after which he dismissed the pro se mother’s petition and awarded sole custody to the father.
Michelle’s appeal led to the Third Department’s decision on Thursday.
Spain, stressing that the party seeking to relocate bears the burden of establishing that relocation is in the best interests of the child, and also noting the deference an appellate court owes to the trial judge, said there was ample basis in the record for Sherman’s decision.
The record shows that while the mother claimed that she took the only job offered and had no choice but to relocate, she also left a “to do” list behind that included “moving out of NY.”
Additionally, although Michelle had filed a family offense petition against Brandon alleging harassment and attempted assault two months before their baby was born, the father testified that the allegations were false. The petition was dismissed without a hearing.
Spain said the “record amply supports the conclusion that the mother was not entirely willing to include the father in decisions regarding the child” and that their brief encounters to exchange the child are volatile, with Michelle screaming at and berating Brandon.
The court agreed with Michelle that requiring her to travel to and from Ithaca to pick up and return Ethan for visitation is “unduly onerous” and sent the matter back to Sherman to consider alternatives, such as having the parents meet halfway.
R. James Miller of Miller Mayer in Ithaca argued for Brandon. Michelle was represented by Jeffrey DeRoberts of Syracuse and Nicholas Tishler of Niskayuna. Pamela Bleiwas appeared as attorney for the child.
Tishler said the “fact-intensive” ruling does not break any new legal ground. But the attorney said that even though he was on the losing end, the quality of the decision and speed with which the case was decided was notable. The Third Department, which is short four of its 12 judges, heard the case on Sept. 13 and issued a nine-page decision six weeks later.
“There were a lot of moving parts in this case and it was nice to see that the court did a very thorough job,” Tishler said. “I think it shows the typical sensitivity the court brings to these kind of cases. When you consider the fact that the court is four judges down and their output is still of such high quality, I am really impressed.”
Overall, the four Appellate Division departments are short about 20 percent of their allotment of judges and the New York State Bar Association and local bars have been urging Governor Andrew Cuomo to fill the vacancies, some of which are two years old (NYLJ, Oct. 1).
Miller was not immediately available for comment.
@|John Caher can be contacted at email@example.com.