Elizabeth Spooner v. Allan Spooner (2011)

MEMORANDUM OF DECISION ON REQUEST TO RELOCATE

This matter came before the court on a Post–Judgment Motion for Modification filed on March 4, 2011 by the plaintiff-mother.   In that motion, the plaintiff seeks to relocate with the parties' children to Zurich, Switzerland.   Because the parties' divorce occurred in Detroit, Michigan, the Michigan dissolution judgment was certified in Connecticut on March 4, 2011.

This court appointed a Guardian Ad Litem to provide the court with information on the proposed relocation.   This court has considered all testimony and evidence introduced at trial in making the following findings of fact.

I FINDINGS OF FACT

The parties married in 1996.   Two children were born of the marriage:  Gisele Spooner, born May 14, 2004 and Sophia Spooner, born May 14, 2004.   In July of 2007, the defendant-father moved from Detroit, Michigan to Las Vegas, Nevada.   In October 2007, the plaintiff filed for divorce in Detroit, Michigan.   On November 13, 2009, a judgment of dissolution was entered in Michigan by agreement of the parties.   In that agreement, the parties agreed that they would share joint custody of the minor children, that the defendant would reside in Nevada and that the plaintiff and the children would relocate to Avon, Connecticut.   A long-distance parenting plan was put in place which allowed the defendant to exercise parenting time approximately eight weeks out of the year.

The defendant has been employed in Las Vegas, Nevada since he moved there in 2007 and he is currently president and CEO of a hospital.   He earns a very good salary.   He adores his children and has returned to Connecticut for significant events approximately five times in the past three years.   He has also exercised his parenting time in Nevada and has shared in the costs of transportation with the plaintiff.   He has never missed his children's birthdays.

The plaintiff began to work for Carrier Corporation in Connecticut in February 2008 as Director of Business Development.   She then transferred into another division of UTC in July of 2008.   After several years of success with UTC, she was supervised by a person who had a personality conflict with her and indicated to her that her job would be ending.   She immediately began to look for employment in late 2010, and after multiple interviews, was offered a position with ABB corporation in Zurich, Switzerland.   This position will effectively give her employment, international exposure in her field and a significant increase in her salary.

The plaintiff has accepted the overseas position and has placed her house on the market for sale.   She currently has no job offers in the United States.   She has arranged daycare and the children's schooling in Switzerland.

The defendant objects to the plaintiff's move to Switzerland because he believes that she can find a job here in the United States.   He also believes that the children will have a difficult time culturally and he fears that the increased distance between him and his children will cause problems exercising a satisfactory parenting plan.   He is concerned that the increased separation will not allow him to get to the children quickly in the event of an emergency with either the plaintiff or the children.   He believes that he and his children have a visitation “rhythm” that should not be disturbed.   And finally, he is worried about the children being left in the care of strangers if and when the plaintiff travels for her job.

II LEGAL STANDARD AND CONCLUSION

While there has been an issue raised over the law that applies in this case, this court need not address that issue.   It has considered the factors set forth under Michigan Statute § 722.31 which governs legal residence change for children;  Conn. Gen.Stat. § 46b–56d which governs relocation, and with requirements for relocation that are more stringent than those under Michigan law;  and Conn. Gen.Stat. § 46b–56(b)(1) which is the best interests standard.   An analysis of the facts under any of these provisions leads this court to the same conclusion.

The plaintiff has established by a fair preponderance of the evidence that there is a legitimate purpose to the proposed relocation, the relocation is reasonable in light of that purpose, and the proposed relocation is in the children's best interests.   The plaintiff has a bona fide employment opportunity in Switzerland.   It is in her field, is an advancement of her career, and will significantly increase her salary.

Conn. Gen.Stat. Section 46b–56(b)(1) provides that “In making any order with respect to custody or visitation the court shall be guided by the best interests of the child, giving consideration to the wishes of the child if the child is of sufficient age.”   Certain criteria have been enumerated by statute to assist the court in determining best interests.  Conn. Gen.Stat. Section 46b–56(c) directs the court, when making any order regarding the care, custody, education, visitation and support of a child, to “consider the best interests of the child, and in doing so [the court] may consider, but shall not be limited to, one or more of [sixteen enumerated] factors ․ The court is not required to assign any weight to any of the factors that it considers.”   Lederle v. Spivey, 113 Conn.App. 177, 187;  965 A.2d 621 (2009).

This court has considered the factors under Conn. Gen.Stat. § 46b–56(b)(1) and finds that the proposed relocation is in the children's best interests.   The parties in this matter are devoted to their children.   However, the children have relocated once already to the state of Connecticut creating a significant geographical distance between the defendant and the children.   In spite of this distance, the parties have admirably worked out a parenting schedule that has clearly worked to the children's advantage.

There is no doubt in this court's mind that placing an ocean between the children and the defendant, while perhaps more complicated, will not deter the defendant and the plaintiff from making adjustments and working out another parenting plan that is as effective as the one currently in place.   Indeed, in the plaintiff's proposal, she has offered the defendant two additional weeks of parenting time to that which is currently in place.   She has also offered to pay for the children's transportation for two round trips from Zurich to either New York or San Francisco annually.

There are additional facts that the court finds in permitting relocation.   The plaintiff has been the children's primary caregiver since the parties' dissolution.   Relocating the children to the defendant's home while the plaintiff is employed in Switzerland makes little sense.   In addition, the children are versatile, flexible and adventurous.   The relocation to Switzerland has presented a tremendous cultural opportunity for them as well.   As the plaintiff stated to the court, “they will have a broad view of the world from a safe vantage point.”   They will be in the position to learn a second and third language.   They will also have the opportunity to travel to many other countries with the plaintiff and with the defendant if he so chooses.

For all of these reasons, this court grants the plaintiff's motion and orders the following.

ORDERS

1. Custody. The parties shall continue to share joint legal custody of the minor children, primary residence with the plaintiff.

2. Relocation. The plaintiff shall be permitted to immediately relocate with the children to Zurich Switzerland.

3. Parenting schedule

a.  The children shall travel to the United States to spend:

(i) Five weeks of summer vacation with the defendant;

(ii) Christmas vacation:  December 18 to January 2 in odd years;  December 16 to December 23 in even years;  and

(iii) March 31 through April 14 every year (Switzerland's spring recess).

b. The defendant shall have additional parenting time with the children during October vacation or February vacation should he choose to travel to Switzerland.   He shall also have additional reasonable parenting time upon 30 days' notice to the plaintiff that he will be in Zurich.

c. For summer vacation time, the defendant shall advise the plaintiff of his intentions to enroll the children in camp/summer school, including the name and address of the camp or school in order to permit the plaintiff to offer her opinion and insight as to the suitability of such program and its compatibility with the children's needs.

d. Should the plaintiff travel to the United States with the children during the year, she shall notify the defendant and allow him to determine whether he can see the children for a minimum of twenty-four hours during that time.

4. International Travel.   Both parties shall execute an authorization for out-of-country travel by the children in the company of the other parent.

5. Passports. The children's passports shall be given to the plaintiff within 24 hours.

6. Communications

a.  The defendant shall have reasonable and liberal telephone, internet, email and/or skyping access to the minor children on Monday, Wednesdays and Fridays between 4:00 p.m. and 6:00 p.m. (Zurich time), and any other times as initiated by the children.   The plaintiff shall be responsible for ensuring that the internet, email and skyping services and equipment are installed and available for use by the children within seven days of arriving in Switzerland.   Until such services and equipment are installed and available.

b. If the minor children are unavailable during the times referenced above, the plaintiff shall be responsible for ensuring that the children return any voice, email, IM, etc. contacts from the defendant within 24 hours at times when the defendant is most likely to be available (i.e. from 7:00 a.m. until 11:00 p.m. Nevada time).

c. Our Family Wizard

i.  The parties shall immediately enroll and utilize Our Family Wizard to share and exchange information pertaining to the minor children during and after the relocation.   The plaintiff shall be responsible for the costs associated with this program for both parents.

ii. The plaintiff shall post, by 6:00 p.m. (Zurich time) on Sunday of each week any upcoming appointments, schedules, events, etc. relating to the minor children for the next week.   The defendant shall respond, if necessary, by 6:00 p.m. (Nevada time) on Tuesday of each week.

iii. The plaintiff shall post all medical, dental, educational, therapeutic and extracurricular schedules and appointments within 24 hours of receiving such information.

d. The plaintiff shall ensure that the defendant's address, telephone and email contact information is provided to all educational, medical, dental, athletic, etc. providers for the minor children and shall be responsible for ensuring that all pertinent information from these providers is forwarded to the defendant in a timely manner.   This information shall include, but not be limited to:  appointments, schedules, medical test results/ evaluations/ diagnosis, and educational evaluations/ reports/ progress reports/grades.

e. The plaintiff shall be responsible for providing the above-referenced information directly to the defendant in the event that the provider is unable or unwilling to do so.

7. Travel. The plaintiff shall pay for the children's and accompanying parent's travel round trip from Zurich to either San Francisco or New York on two specified parenting access times.   The parties shall share equally the expenses of any additional trans-Atlantic trips taken by the children for visits with the defendant.   The defendant shall specify which airport he elects at the defendant's option.

8. Miscellaneous

a.  Neither parent shall discuss the court action, the parenting schedule, or custody determinations with or in the presence of the minor children.   Any and all discussions regarding transportation and scheduling of parenting time should occur solely between the parents and should not involve the minor children.

b. Any consistent failure to comply with communication provisions and access between the minor children and the defendant shall be considered in further modifications of the custodial arrangements.

By agreement of the parties, Connecticut shall retain jurisdiction over this matter until further order of the court.

SO ORDERED.

BY THE COURT

Prestley, J.

Prestley, Linda Pearce, J.