Alton Abramowitz and Sophie Jacobi-Parisi ()
“Like Humpty Dumpty, a family, once broken by divorce, cannot be put back together in precisely the same way.” Thus, Judge Vito J. Titone, writing for a unanimous Court of Appeals in Tropea v. Tropea, 87 NY2d 727 (1996), captured the essence of the dilemma that has confronted court after court when a divorced custodial parent seeks to relocate with a child to better their lives in accordance with that parent’s vision. Nearly two decades later, there are still no easy solutions and relocation remains an issue to be decided on a case-by-case basis as recent opinions illustrate. This review begins the search for a pattern providing precedential guidance for resolving this complex and vexing issue, and leads to this question: Has the unspoken question of gender bias, perhaps a lack of economic equality, at last made it to the forefront of relocation determinations in the First Department?
Relocation to Mississippi
In Matter of Kevin McK. v. Elizabeth A.E., 111 AD3d 124, 125 (First Dept. 2013), Justice David B. Saxe of the Appellate Division, First Department, opened the decision with remarks about grappling with relocation issues—and in this case, the economic frustrations of residing in New York City, writing, “We are once again confronted with the problem of balancing a child’s need for the ongoing presence of both parents in his daily life, with the custodial parent’s proven inability to support herself and the child beyond the subsistence level here in New York.” Id. at 126.
The court-appointed forensic psychologist in Kevin McK. supported the mother’s application to relocate to her hometown of Oxford, Miss., with the parties’ 10-year-old child. The child’s attorney opposed the application. After 13 trial days over the course of two and one-half years, the Family Court, New York County, denied the mother’s application. The mother had worked for close to 20 years on the upper west side of Manhattan as a horseback riding instructor at the Claremont Riding Academy. After Claremont closed in 2007, her earnings significantly decreased because she had not been able to find steady employment.
The mother had been offered two, year-round employment opportunities in Oxford as a horse trainer and a riding instructor. If permitted to move, she estimated that her expenses would decrease by approximately 75 percent. Other economic considerations were the father’s sporadic child support payments and the cost of her rent/housing in New York City. In order to make ends meet, she had borrowed money from a friend, from the Author’s League Fund and from her family. Among the relocation benefits cited by the mother were that the child “would have the opportunity to play in a yard, ride tractors, and help with the horses.” Significantly, an apartment over the maternal grandparents’ garage would be made available to the father without charge at any time he wanted to visit the child. Id. at 127.
The father opposed the relocation because it would disrupt his “very close and steady relationship” with the child. However, the father confirmed that he had not reliably paid child support. His testimony about his sources of income, expenses, filed tax returns, and inheritance were found to be vague and incredible. Id at 128.
The forensic psychologist testified that the child “would be able to make the necessary adjustment and, provided that ample contact was permitted between the child and the father, such a move would not be damaging to the child.” The psychologist did not find that the mother was seeking to relocate to Oxford to interfere with the father’s relationship and he found “no evidence that the mother was ‘badmouthing’ the father or attempting to alienate him from the child.” Id. at 128.
The trial court found that both parties were “good parents and loving towards the child,” yet concluded that awarding the mother sole custody was in the child’s best interests. The court then denied the mother’s application to relocate finding that she had “failed to prove by a preponderance of the evidence that her financial circumstances” required a move to Mississippi. The trial court expressed disbelief that the mother’s financial circumstances were so dire when she had “continued ability to pay her rent, maintain $10,000 in savings, keep a zero balance on her credit card, and provide for the child.”
The Appellate Division reversed, finding that the trial court’s “determination denying the mother’s petition for relocation lacks a sound and substantial basis in the record, and, further, that the mother established by more than a preponderance of the evidence that relocation is in the best interests of the child, in that it will enhance the child’s life both economically and emotionally.” Id. at 129. The court also determined that the mother had established that she had been unable to support herself and the child beyond a subsistence level since she lost her job in 2007, noting that, while the mother was “not (yet) destitute” and had not been resigned to living in a homeless shelter, the mother’s testimony was clear about how she had supported the child and herself in sharp contrast to the father’s testimony about his finances. Id. at 130.
The Appellate Division dismissed the trial court’s findings about the mother and articulated its position concerning an application to move based on economics, stating,
Not only do we reject the unsupported suggestion that the mother actually had other, hidden, means of support, but we observe that proof of economic necessity does not require the parent to wait until she has used up every last dollar of her savings before taking steps to ensure that she will be able to care for the child’s future economic needs. Id. at 130.
The Appellate Division also emphasized that the father did not provide consistent and sufficient financial support. In fact, the court weighed the benefits of the child’s relocation to Oxford against the sporadic payment of child support, holding:
the proposed move to Mississippi will give the mother and child an extensive network of family support, and the child has strong emotional bonds with his maternal grandparents, whom he has visited in previous summers. The requested relocation will provide the benefits of living near, and having the financial and emotional support of, the child’s maternal extended family, enabling the child to enjoy a comfortable life free of economic distress, among a loving and supportive extended family. That powerful consideration would be less weighty if the father were providing consistent, steady, and sufficient support to ensure the child’s lifestyle at a level above subsistence; however, nothing in the record provides such assurance. Id. at 131.
Finally, the Appellate Division found no indication that the mother would interfere with the father’s relationship with the child. It granted the application on condition that the father have broad access to the child in Mississippi and a visitation schedule in New York. Id. at 133.
Paternity and Jurisdiction
In another First Department case, Matter of Sara Ashton McK. v. Samuel Bode M., 111 A.D.3d 474, 475 (First Dept. 2013), the court determined jurisdiction in a paternity action. On Nov. 15, 2012, the father, Olympian Bode Miller, commenced a paternity petition in California while the mother, with whom he had had a short relationship, was pregnant. The mother relocated to New York to attend Columbia University on the GI Bill (NYLJ, Nov. 15, 2013).
The parties met in California through a high-end matchmaking service. The parties’ relationship lasted less than two months but the mother became pregnant. In California, the mother, a former Marine, was working as a firefighter. She started considering colleges when she realized she could not continue “with her stressful firefighting job” any further and she texted the father in October 2012 that she had met with an advisor from Columbia University and “we will probably be moving there in the fall.” “Custody Battle Raises Questions About the Rights of Women” The New York Times, Nov. 23, 2013.
In December 2012, when the mother was seven months pregnant, she moved from California to New York City. Once the baby was born, the mother filed for temporary custody in New York Family Court.
The trial court determined that New York was the home state of the child, but declined to exercise jurisdiction pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), holding that the mother engaged in “unjustifiable conduct” and her “‘appropriation of the child while in utero was irresponsible’ and ‘reprehensible’ and warranted a declination of jurisdiction in favor of the California court.”
The Appellate Division was unpersuaded by the court below: “we reject the Referee’s apparent suggestion that, prior to her relocation, the mother needed to somehow arrange her relocation with the father with whom she had only a brief romantic relationship. Putative fathers have neither the right nor the ability to restrict a pregnant woman from her constitutionally-protected liberty.” (emphasis added) Id. at 475.
Similarly dismissive, the Appellate Division rejected the trial court’s decision declining jurisdiction on the basis of inconvenient forum: “While there is every indication that each court has the ability to decide the issues expeditiously, a court of this State is no less competent to determine the issues and assess the credibility of the parties than a judge of the California court.” Id. at 476.
Second Department Decision
Contrast the foregoing with the Appellate Division, Second Department’s determination in Matter of Francis-Miller v. Miller, 111 A.D.3d 632 (2d Dept. 2013). There, the mother sought to relocate to South Africa, where she was born and raised, with the parties’ now 4-year-old daughter. The court-appointed forensic psychologist did not support the mother’s application, although the child’s attorney did join the mother’s side of the argument. The Family Court, Rockland County, granted the mother’s application.
The mother had sole legal and physical custody of the child pursuant to court order. Subsequently, she obtained an order of protection against the father because he had threatened to kill himself in front of the child. Five months later, the mother filed a violation petition predicated on a heated argument that occurred during a transition. The violation petition was followed by a motion for permission to relocate with the child. Id. at 632-633.
The mother’s testimony detailed domestic violence incidents that had occurred during the marriage, including one that resulted in an order of protection. The mother testified that while she was steadily employed, if she were permitted to relocate to South Africa she would have employment in her parents’ business, free child care assistance from her mother, and no housing expenses because she would live with her parents with a separate room for the child and her. She testified that she had “an extended, close-knit family” in South Africa.
The father denied ever hitting the mother, but conceded that he has threatened to kill himself several times in front of the mother and had once choked himself to the point that he lost consciousness. The father opposed relocation stating that Skype communications and email were “not a substitute for his current relationship with the child, who lived only a quarter of a mile away from him.” Id. at 633 – 634.
The forensic psychologist recommended that the mother’s application for relocation be denied, observing that although the mother had “excellent parental capacity,” the father “was currently emotionally and mentally stable.” Finding both parents appropriate, his recommendation turned on the mother’s reasons for seeking to relocate, positing that the mother is a, “‘single mother who is very alone in the United States with all her relatives residing in South Africa. She feels isolated and has made the psychological and emotional decision to relocate and remove the child from the father so she can return to South Africa.’”
The psychologist outweighed the mother’s concerns about the father’s mental health and his history of domestic violence with the observation that the mother “continued to rely on him at times to fulfil her emotional and sexual needs.” The forensic psychologist concluded that the child and the father could not develop and maintain a good relationship through Skype communications. Id. at 634.
The trial court granted the mother’s application for relocation, crediting her testimony with respect to the history of domestic violence. It agreed with the psychologist that the mother’s isolation was “self-created,” yet found that the report and recommendations should be less of a factor, because “the psychologist had discredited the mother’s claim that she feared the father by pointing to the fact that after the separation, the mother invited the father to her home on different occasions, and initiated sexual encounters with him.” The trial court determined that the mother was “struggling financially and emotionally in the United States, and would be better off if permitted to return to South Africa, where she could work in the family business and live rent-free.” Id. at 634.
The Second Department reversed, concluding that “the Family Court’s determination that the proposed relocation was in the child’s best interests is not supported by a sound and substantial basis in the record.” It addressed the domestic violence history by determining: (1) that the record did not contain any evidence that the father had ever “harmed the child or directed his anger toward her,” and, (2) that the mother’s application to relocate was not to “escape” domestic violence.
The Appellate Division also found “no economic necessity” for relocation and that the economic benefits of living with the mother’s parents and working for their business, “do not outweigh the drastic reduction in the quantity and quality of the child’s contacts with the father which would ensue if the child relocated to a country so distant from the United States that, according to the parties, it requires a 24-hour-long flight to reach.” Id. at 634-635.
While it may be that the unspoken and underlying basis for the Second Department’s determination was the great distance between Rockland County and South Africa, which would have minimized the child’s contact with the father, there is a clear departure from the First Department’s reliance on the economic benefits that would inure to the women in its cases if relocation were allowed.
Particularly vexing is the Second Department’s disregard of the domestic violence perpetrated on the mother, while holding that there was no danger to the child, despite the father’s own testimonial admission of his threats of suicide. Are threats of self-inflicted harm any less dangerous to a child’s best interests than threats of physical violence toward others? Perhaps the answers to these and other questions surrounding the quagmire of relocation litigation will be clarified by future appellate determinations.
Alton L. Abramowitz is a senior partner at Mayerson Abramowitz & Kahn and immediate past national president of the American Academy of Matrimonial Lawyers; Sophie Jacobi-Parisi is a partner at Mayerson Abramowitz.