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IN RE: a Child Custody Proceeding Under Article 6 of the Family Court Act C.F., Petitioner, v. A.S., Respondent.
This matter involves a petition seeking court permission to relocate under Article 6 of the Family Court Act filed by Petitioner mother. Respondent father contests Petitioner's relocation request. Attorney for the child (AFC) supports the petition. Trial was held and testimony was taken on January 29, 2018 and April 3, 2018.
Summary of Arguments:
Petitioner seeks to relocate with the child to provide adequate and affordable housing, live in a safer neighborhood, and provide better educational opportunities for the child. Petitioner's original request was to relocate to Miami, Florida but she is now seeking to relocate to Edison, New Jersey. Petitioner argues that under the Tropea factors, it is in the best interest of the child to relocate out of her current neighborhood. Tropea v. Tropea, 87 NY2d 727 (Ct. App. 1996); see also Kevin McK. v. Elizabeth A.E., 111 AD3d 124, (1st Dept. 2013); Carmen G. v. Rogelio D., 100 AD3d 568 (1st Dept. 2012); Caruso v. Cruz, 114 AD3d 769, 771 (2nd Dept. 2014).
In opposition, Respondent contends that the petition fails to allege a change in circumstances as required for a modification. As such, Petitioner has not met her prima facie burden of demonstrating a change in circumstances and the petition should be dismissed. See Sweetser v. Willis, 91 AD3d 963, 937 (2nd Dept. 2012); Harding v. Harding, 84 AD3d 1086 (2nd Dept. 2011). Respondent argues that the court is not allowed to consider any post-petition evidence until a change in circumstances has been demonstrated. See Hamilton v. Anderson, 143 AD3d 1086, 1088 (3rd Dept. 2016); Hayward v. Campbell, 104 AD3d 1000 (3rd Dept. 2013). Respondent contends that Petitioner did not present her reasoning for wanting to move until after the petition was filed, and that her reasons for seeking to relocate with the subject child are speculative, frivolous and racially motivated. Respondent further argues that if the court finds that a change in circumstances exists, relocation is not in the best interests of the child for the following reasons: (1) Petitioner has superficial reasons as to why she wants to relocate; (2) Petitioner's neighborhood has improved; (3) Petitioner is racist against Dominicans and African-Americans; and, (4) relocation would impair Respondent's relationship with the child.
Attorney for the child (AFC) supports Petitioner's request to relocate to Edison, New Jersey and believes it is in the child's best interest. Tropea, supra; see also Hilton v. Hilton, 244 AD2d 902, 903 (4th Dept. 1997). AFC argues that Petitioner has compelling reasons to relocate to New Jersey including enhancing the child's life emotionally, economically and educationally.
The parties entered into a final order of custody dated May 14, 2013, granting the parties joint legal custody with primary physical custody to Petitioner. Respondent has a liberal parenting time schedule with the subject child and neither party may relocate with the child outside of the jurisdiction of New York City without consent of the other parent or court order.
Petitioner testified that she seeks to relocate to provide the child with adequate living space. She described her current home as a cramped one-bedroom apartment where she resides with the child and the maternal grandmother. Petitioner testified that she and the child share a bed in the bedroom while the maternal grandmother sleeps in the living room. Petitioner submitted photographic evidence 1 of her current living arrangements supporting her description of her current living space. Petitioner testified that she conducted research to find larger apartments in her area; however, one-bedroom rentals are approximately $1500 per month and significantly more for two-bedroom rentals. Petitioner testified that she also researched larger apartments in other boroughs of New York City, however the apartments were small and well above her budget.
Petitioner further testified that she seeks to relocate with the subject child to provide the child with quality education without incurring private school fees or restricting Petitioner's ability to retain full-time employment. The child currently attends St. Anne's Catholic school, a private school in Manhattan, which per Petitioner has an excellent academic curriculum. The normal tuition amount is $450 per month. However, because of Petitioner's financial status at the time of enrollment, the child was granted a partial scholarship for the 2017-2018 school year, requiring a monthly payment of only $225 per month. Petitioner further testified that although St. Anne's has a great education program, the child has to commute almost two hours each way and must be picked up from school by 3:45PM to avoid incurring the afterschool fee of $11 per day. While the maternal grandmother is home, she is physically unable to make the commute to drop off or pick up the child to and from school daily. Petitioner also testified that she is now gainfully employed full time and is not likely to qualify for the same financial aid she received for the prior school year.
Petitioner testified that during the 2017-2018 school year, Respondent picked up the child from school on a few occasions. Petitioner described this arrangement as “strenuous” because Respondent would pick the child up from school during his lunch break and take her to his job in Times Square. When Petitioner got off from work at 4:30PM, she would leave the Bronx to “rush” to Times Square to pick up the child, so Respondent could return to work. When Petitioner would arrive to pick up the child from Respondent's place of employment, the child would be sitting in the lunch area with Respondent in the vicinity. Petitioner testified that she was unaware whether the child was being supervised before she arrived. Thereafter, Petitioner and the child had to travel back to the Bronx from Times Square during rush hour, which Petitioner found to be exhausting.
Lastly, Petitioner testified that she seeks to relocate due to the high crime rate in her current neighborhood. Petitioner testified that there are many drug addicts and sexual predators in the area and that she is no longer comfortable raising the child in that neighborhood. Additionally, Petitioner testified that the schools in her neighborhood have poor testing scores, prompting her to enroll the child in St. Anne's and that she has observed rowdy behavior of the students who attend the schools in her current neighborhood.
Petitioner testified that she conducted research for the community and apartment complex where she would live and the school the child would attend if permitted to relocate to Edison, New Jersey with the child. She testified that Edison, New Jersey is a family friendly neighborhood, which is safer and cleaner than where Petitioner currently resides.
She submitted evidence of her research in the form of photographs of the apartment complex community 2 where she would live and Woodbrook Elementary School 3 where she would enroll the child. The photographs of the available apartments demonstrated that the child could have her own room and more living space for Petitioner, the child and the maternal grandmother.
Woodbrook Elementary, where the child would attend, would be free of charge, and would also provide bussing to and from the apartment complex to the school. Petitioner testified that the maternal grandmother would be able to put the child on the bus in the morning and pick up the child from the bus in the afternoon allowing Petitioner to maintain full-time employment. Petitioner argues that if allowed to relocate with the child, her life would improve economically, emotionally and educationally.
Concerning Respondent's parenting time, Petitioner testified that Respondent has always had unfettered access to the child. Petitioner would make the subject child available whenever Respondent requested to spend time with her, including unannounced visits to Petitioner's home. Prior to October 2017, Respondent did not exercise overnight parenting time with the subject child and his work schedule did not allow him to see the child during the week because he worked late.
Starting in October 2017, Respondent was granted a temporary order of formal parenting time consisting of alternate weekends.4 However, Respondent exercised his parenting time with the child both on his weekends and on Petitioner's weekends. Respondent had approximately only three overnight visits with the child between October 2017 and January 2018, as the child would become visibly upset at the time of drop off. Respondent would contact Petitioner to pick up the child or console her to remain at Respondent's home. Petitioner wholly acknowledges Respondent's concern of preserving his relationship with the subject child, but also notes that the parties are not a nuclear family and that it is not realistic for them or the child to continue to act as though they are.
Petitioner testified that Edison, New Jersey is only 11 miles from the border of Staten Island, New York and is accessible by public transportation. If permitted to relocate with the child, Respondent would still be able to exercise alternate weekend parenting time with the child, have liberal Facetime contact and any additional time during the summer breaks, school recesses, holidays and other vacation time as the parties agree. Petitioner is also willing to assume the cost of the transportation for the visits.
Petitioner refutes Respondent's assertions that her reasoning for requesting to relocate is because of racism against African-Americans and Dominicans. Petitioner, is Hispanic, the subject child is Black and Hispanic. Additionally, Petitioner has resided in New York and Miami, two of the most diverse cities in the country. In addition to the reasons stated above, Petitioner testified that she originally requested to relocate to Florida, where the majority of her family resides, and Respondent suggested New Jersey as an alternative.
Petitioner requests that the court grant her permission to relocate to Edison, New Jersey with the subject child as it is in her best interest.
Respondent testified that Petitioner's neighborhood has improved and is a safe place to raise the subject child. He testified that the apartment building where Petitioner and subject child live has been recently painted and now has wheelchair access. He also testified that a new supermarket and an urgent care facility have been opened in the area. He himself used to live in the building, but now lives elsewhere.
Respondent described Petitioner's neighborhood as being comprised mainly of Dominicans and African-Americans. Respondent testified that Petitioner is racist against people of Dominican and African-American descent, which is her sole motivation for wanting to relocate. Per Respondent, Petitioner has stated to him that she wants to “get away from them” and has repeatedly voiced her disdain for them by calling them derogatory names such as “dimelos” and “monkeys”.
As to Respondent's time with the child, Respondent testified that two years ago, while working for a different employer, his work hours were from 8:30AM to 4:30PM, which allowed him to see the child three to four times per week during the summer. For the past two years to present, Respondent has worked in Times Square. His work hours are from 10AM to 6PM, however his schedule would be changing to 8:30AM to 4:30PM. He further testified that his current employer is flexible and “extremely lax” and allows him to take his lunch break whenever he chooses. As such, he can rearrange his schedule to take lunch later in the day to spend time with the subject child.
Respondent's testimony regarding the time he spent with the child during the school year was inconsistent. He testified that prior to the 2017-2018 school year, he saw the child two or three times a week. In the 2017-2018 school year, Respondent initially testified that after February 2018, he saw the child every Thursday. Regarding this same time frame, he later testified he saw her Wednesdays and Thursdays, then testified he saw her Mondays, Wednesdays and Thursdays. He also testified that in addition to physically seeing her, he would also Facetime with the child for approximately three hours during the day while she was at home and he was at work. When questioned further by the attorney for the child on time spent with the child, Respondent denied that this was his testimony. Eventually, he admitted, he had no set schedule for which he spent time with the child during the school year.
Respondent testified that he spends a lot of time with Petitioner and the child together. Petitioner would be present during his weekend time with the subject child. When Petitioner was unemployed, Petitioner would occasionally bring the child to Respondent's job and all three of them would go to late lunch. Petitioner would also be present when Respondent would take the child to dinner during the week. They also go to Wave Hill and the Botanical Gardens together and have taken trips to Florida together. Respondent also testified that the child would have separation anxiety from Petitioner during some of the overnight visits and Petitioner had to come and pick up the child, but his testimony about when the overnights occurred was inconsistent and unclear.
Concerning the subject child's current school, Respondent testified that he was not initially in agreement with the subject child attending St. Anne's because he believed her daily commute to school was “brutal” and her schedule was “rough” having to wake up at 6AM to be at school by 8AM. Between February 2018 and June 2018, Respondent assisted Petitioner with pick up and drop off of the subject child from school approximately eight or nine times. In the prior school year (2016 to 2017) Respondent testified that he picked up the subject child from school once or twice. Otherwise, Petitioner was primarily responsible for dropping off and picking up the child from school.
Based on the foregoing, Respondent requests that the court deny Petitioner's relocation petition.
“A parent seeking leave to relocate with a child bears the burden of establishing by a preponderance of the evidence that the proposed move would be in the child's best interests.” Matsen v. Matsen, 77 N.Y.S.3d 127 (2nd Dept. 2018); see also, Tropea, supra; see Matter of Caruso v. Cruz, 114 AD3d 769, 771 (2nd Dept. 2014); see Matter of DeCillis v. DeCillis, 128 AD3d 818, 819 (2nd Dept. 2015); see Matter of Doyle v. Debe, 120 AD3d 676, 680 (2nd Dept. 2014).
The Court of Appeals in Tropea eliminated the three-step meaningful access exceptional-circumstance analysis, holding that:
“in determining whether relocation is appropriate, each request of a custodial parent to relocate the child must be considered on its own merits with due consideration of all the relevant facts and circumstances and with predominant emphasis being placed on what outcome is most likely to serve the best interests of the child.” “in the end, it is for the court to determine, based on all of the proof, whether it has been established by a preponderance of the evidence that a proposed relocation would serve the child's best interest.” Tropea v. Tropea, 87 NY2d 727 (Ct. App. 1996); see also Matsen at 129; Alaire K.G. v. Anthony P.G., 925 N.Y.S.2d 417, 419 (1st Dept. 2011); see also Ceballos v. Leon, 21 N.Y.S.3d 353, 354 (2nd Dept. 2015)
Factors the court may consider include but are not limited to: (1) each parent's reasons for seeking or opposing the move, (2) the quality of the relationships between the child and the custodial and noncustodial parents, (3) the impact of the move on the quantity and quality of the child's future contact with the noncustodial parent, (4) the degree to which the custodial parent's life and child's life may be enhanced economically, emotionally and educationally by the move, and (5) the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements. see Tropea at 740—41; see Matsen at 129; see Matter of Caruso v. Cruz, 114 AD3d 769 (2nd Dept. 2014); see Matter of DeCillis v. DeCillis, 128 AD3d 818 (2nd Dept. 2015).
In the present matter, Petitioner is not seeking to modify a prior order of custody; she is seeking permission to relocate out of the jurisdiction, for which she must either obtain the father's consent or a court order, per the May 2014 order of custody. As such, Petitioner is not required to demonstrate a change of circumstances as argued by Respondent.
Notwithstanding, Petitioner's reasoning for wanting to relocate do establish a change in circumstances. When the original custody order of 2013 was issued, the child was only two years old and the order did not consider any changes that could occur when the child became school age. The Petitioner testified credibly concerning the limited living space for the subject child as she grows older and the hardship of obtaining gainful full-time employment while balancing the educational needs of the child who is now school age, in which the Respondent offers little to no assistance.
Petitioner testified credibly that relocation would enhance both her life and the life of the subject child physically, financially and educationally and would not deprive Respondent of meaningful access to the child. Petitioner provided credible testimonial and documentary evidence of her current living arrangements and lack of space.5 Petitioner also provided credible testimonial and documentary evidence of the apartment in Edison, New Jersey, where she intends to live which will provide the subject child with her own living space.6 She also provided credible testimonial and documentary evidence of Woodbrook Elementary school, also located in Edison New Jersey, where she intends to enroll the subject child, for which bussing between home and school is available.7 Petitioner further testified credibly that her research on various areas in New York was above her budget and ability to provide what she believes is a quality life for the subject child.
Initially, Petitioner sought to move to Florida, but compromised on New Jersey, so as not to minimize Respondent's meaningful access to the child. Petitioner has also volunteered bear the burden of all pick up and drop offs in facilitating Respondent's parenting time. While Respondent argues that the relocation would substantially interfere with his parental access to the child, this court disagrees as the testimony is contrary to Respondent's position.
It is undisputed that Respondent has unfettered access to the child and that Respondent and the child have a close relationship. However, the majority of his in person parenting time is exercised on the weekends. Respondent's testimony was not credible concerning the amount of time he physically spends with the child during the week. Respondent's accounts of time spent were inconsistent and unclear on both direct and cross-examination. Respondent offered no consistent testimony of any actual weekday activities of the child with which he is involved or has been involved in the past two years, other than the eight times Respondent picked up the child from school during the second half of the 2017-2018 school year.
The court notes however, that Respondent did consistently testify that he has a flexible work schedule and can take lunch whenever he wants to. Therefore, if the child has any school functions, Respondent can use his flexible work schedule to attend any events. In addition, Respondent's Facetime contact with the child can also continue from any location. Accordingly, Respondent would not be deprived of regular and meaningful access with the child. See Matsen supra (mother's evidence demonstrated her considerations for requesting to relocate included the educational and social opportunities for the children and the feasibility of frequent access with the father if relocation was permitted and father would continue to have daily telephone, FaceTime, or Skype calls with the children when he does not have physical access); see Matter of DeCillis v. DeCillis, 128 AD3d 818, 820, 7 N.Y.S.3d 614 (2nd Dept. 2015) (although the relocation to Richmond County would have some impact on the father's participation in extracurricular activities, the fact that he worked for a family-owned company and had a flexible work schedule, would still allow him to participate in some of those activities; further, father's regular parenting time would not be substantially hindered or effected by the move. The mother initially requested to move to Nassau County, to which the father would not consent).
Lastly, Respondent's testimony did not establish that Petitioner's sole reasoning for seeking to relocate is due to her being racist against Dominicans and African Americans.
In due consideration of all relevant factors presented in this matter, this court finds that Petitioner has demonstrated by a preponderance of the evidence that the proposed relocation with the subject child to Edison, New Jersey is in the best interest of the child. This court further finds that relocation with the subject child would not substantially inhibit or interfere with Respondent's parenting time, which will remain liberal per the original order of custody.
Based on the foregoing, IT IS HEREBY ORDERED that the petition for modification and relocation is GRANTED, Petitioner is permitted to relocate to Edison, New Jersey; all other terms of the May 14, 2013 order will remain in effect.
1. Petitioner's 1-3
2. Petitioner's Exhibit 4-7
3. Petitioner's Exhibit 8-11
4. On October 17, 2017, this court issued a temporary order of visitation allowing Respondent parenting time with the child alternate weekends. Pick up Friday at 7PM and drop off Sunday at 6PM. Petitioner was to facilitate drop off on Friday and Respondent was to facilitate drop off on Sunday. Additionally, Respondent had mid-week parenting time with the child on Wednesdays from 7PM-8PM.
5. Petitioner's Exhibit 1-3
6. Petitioner's Exhibit 4-7
7. Petitioner's Exhibit 8-11
Aija M. Tingling, J.
Response sent, thank you
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Docket No: 144143
Decided: September 21, 2018
Court: Family Court, New York.
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