Cynthia May v. Donald May (2011)

MEMORANDUM OF DECISION RE MOTION FOR MODIFICATION POSTJUDGMENT

The plaintiff Cynthia May filed a motion for modification postjudgment (Docket No. 135.00) against her former husband, the defendant Donald May, seeking an order from the court allowing her to relocate to Rochester, New York with her two youngest children, Kathryn and Christopher May. A hearing was held on the motion on August 22, 2011, at which time the plaintiff and the defendant were fully heard.

General Statutes § 46b–56d(a) provides that if a custodial parent desires to relocate and such relocation would have a significant impact on the existing parenting plan, the parent seeking to relocate bears the burden of proving by a preponderance of the evidence that:  (1) the relocation is for a legitimate purpose;  (2) the proposed location is reasonable in light of such purpose;  and (3) the relocation is in the best interests of the child(ren).   In determining whether to approve the relocation of the child(ren), the court shall consider, among other factors:  each parent's reasons for seeking or opposing the move;  the quality of the relationships between the child(ren) and each parent;  the impact of the relocation on the quantity and quality of the child(ren)'s future contact with the nonrelocating parent;  the degree to which the relocation would enhance the relocating parent's and the child(ren)'s life economically, emotionally and educationally;  and the feasibility of preserving the relationship between the nonrelocating parent and the child(ren) through suitable visitation arrangements.  General Statutes § 46b–56d(b).

After due hearing, and upon careful consideration of all of the evidence before it as well as the statutory criteria contained in General Statutes § 46b–56d and the related case law, the court finds as follows:

1. After being out of the work force for eighteen years while raising her children, the plaintiff has had difficulty finding full-time employment in Connecticut.   She looked for work for over fourteen months before being hired part-time.   She subsequently found full-time work but was laid off from her position as a pharmacy technician in May 2011.   In July 2011, the plaintiff secured full-time employment at Rochester General Hospital and moved to Rochester, NY. The plaintiff's new employment includes substantial benefits and enables her to better financially support her children and herself.   The plaintiff's fiancée also resides and works in Rochester, NY. There was conflicting evidence as to when the plaintiff first expressed interest in moving to Rochester and whether her interest in moving there was motivated more by her desire live closer to her fiancée than by her desire to secure more lucrative employment.   Irrespective of the plaintiff's initial motivation, the court finds that the plaintiff's relocation to Rochester, N.Y. is for the legitimate purpose of enabling the plaintiff to maintain full-time employment which will benefit her children and herself.

2. The plaintiff is currently living and working in Rochester.   Rochester is a 350–mile drive from the defendant's home in Cromwell, CT;  however, the plaintiff is willing to agree to a flexible visitation schedule which includes regular visitation in Connecticut with the plaintiff either meeting the defendant in Albany, N.Y. for the transfer of the children or driving the children to the defendant's home in Cromwell, CT, depending upon her work schedule.   Accordingly, the court finds that Rochester, N.Y. is a reasonable location in light of the plaintiff's relocation for employment purposes.

3. The parties' older children, Andrew and Peter May, currently reside with the defendant.   The plaintiff and the defendant share joint legal custody of the minor children, Peter, Kathryn and Christopher May;  however, the plaintiff is and has been the primary caretaker for Kathryn and Christopher.   The two older children have presented some challenges to their parents on various fronts.   These challenges resulted in Peter moving in with his father and older brother Andrew in February 2011.   The plaintiff is concerned that the older siblings are not a positive influence on their younger siblings.   There was evidence of discord between the siblings, most notably between Kathryn and her two older brothers, Andrew and Peter.   Kathryn has expressed a strong interest in relocating to Rochester with her mother.   Christopher has also expressed his preference to remain with his mother.   The minor children's guardian ad litem, Attorney Susan Cousineau, opined that it would be in Kathryn and Christopher's best interests if they were allowed to relocate to Rochester with their mother.   The Family Relations Counselor, Leslie Kahl, initially recommended in mid-July 2011 that Kathryn and Christopher continue to live in Connecticut with their mother.   However, given that the plaintiff moved to Rochester and has indicated that she does not intend to return to Connecticut, Ms. Kahl testified that her initial recommendation was no longer feasible and that she had not formulated a further recommendation that took into account the fact that the plaintiff no longer resides in Connecticut.   The defendant vehemently objects to his younger children's relocation to Rochester with their mother.   However, he did not provide the court with any alternative plan for their care if the plaintiff's relocation request were to be denied.   Accordingly, the court finds that relocation to Rochester, N.Y. is in the best interests of Kathryn and Christopher May.

The court recognizes the defendant's concerns that allowing Kathryn and Christopher to relocate to Rochester with their mother will have a negative effect on the time he spends with his younger children and could adversely impact his relationship with them as well as his children's relationships with one another.   However, the plaintiff's willingness to provide the defendant with significant weekend, holiday and summer vacation time with the children, both in Connecticut and New York, and to assist with transportation in connection with the Connecticut visitation, would lessen any negative impact resulting from the proposed relocation.   Moreover, it is clear to the court that the defendant will make every effort to remain a strong personal presence in his younger children's lives.   Indeed, the defendant expressed interest in relocating to Rochester himself, and the plaintiff had no objection to this course of action.   Finally, the plaintiff testified that she is committed to ensuring that the defendant maintains his relationships with their younger children.

For these reasons, the court finds that the plaintiff has sustained her burden of proving by a preponderance of the evidence that the relocation of Kathryn and Christopher May to Rochester, N.Y. is for a legitimate purpose;  that Rochester is reasonable in light of such purpose;  and that relocation is in the best interests of Kathryn and Christopher.   The plaintiff's motion for modification postjudgment is granted.   The court shall enter a supplemental order modifying the parties' existing Custody and Parental Responsibility Plan.

SO ORDERED.

LISA KELLY MORGAN, JUDGE

Morgan, Lisa K., J.