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15 Mile Radius Clause Found Valid and Enforceable

A child holding it's parents hand

In a case before Justice Richard Dollinger in Monroe County New York a father sought relief from the 15 mile radius clause that was in a separation agreement. The agreement stated the father needed to live within 15 miles of the mother’s residence as part of a parenting plan. The father brought an action requesting relief from the 15 mile provision. He did not argue that the agreement was unfair or inequitable. His argument was that he had a new girlfriend and she resided more than 15 miles from the mother’s residence. Judge Dollinger ruled this could not be considered an unanticipated situation. Dollinger went on to hold that the father’s new residence was his own choice. There was no evidence presented of extreme financial hardship related to this 15 mile radius clause.

No penalty Clause in the Agreement

The father argued that there was no penalty provision in this settlement agreement. He also argued there was no deadline for him to change his residence back to within the 15 mile radius. However Judge Dollinger ruled in the absence of a contractual deadline the court would impose a “reasonable time” deadline with regard to the father’s compliance with the terms of this agreement. He therefore gave the father three (3) months from the date their child would start kindergarten to comply with the 15 mile radius requirement. Judge Dollinger felt a three (3) month compliance period was a reasonable period of time for the father to become in compliance with the terms of this agreement. In the end Judge Dollinger refused to relieve father of his obligation to live within 15 miles of the mother’s residence.

Conclusion

Attorney Elliot Schlissel

Many settlement agreements and/or separation agreements have radius clauses. These clauses generally prevent the custodial parent from moving more than 15 to 25 miles from the former marital residence. Once these clauses are in an agreement it is difficult to get around them.

VIDEO: Parental Alienation Syndrome

Joint Custody in New York, Maybe?

Father holding son

New York State is one of the seven states in the United States which does not generally award joint custody to both parents of minor children. Joint custody arrangements can be made in New York, however, they have to be made pursuant to an agreement between the parties. The agreement can take place in a Stipulation of Settlement in a divorce, a Settlement Agreement in a custody proceeding in family court or pursuant to a Separation Agreement.

If the parties have not worked out a joint custody arrangement out of court, judges in New York will usually determine the issue of which parent receives custody of the children based on the best interests of the children. In these situations the court will award one parent residential custody of the children and the other parent parenting time (this is the politically correct term for visitation).

Fathers Seeking Custody

Fathers who seek to obtain custody of their children have to be aware that although the law has been gender neutral concerning who receives custody in New York for many years, mothers win the majority of custody legal battles. It is important, therefore, for a father who seeks to have custody of his children to retain an experienced, dedicated attorney who has experience advocating for fathers to obtain custody.

Father as the Primary Caretaker

In cases where the father has been the primary caretaker of the children, is the better provider, who puts the children’s best interests in the forefront of his thoughts, he should have the opportunity, if he desires, to become the sole residential custodial parent if a joint custody arrangement cannot be worked out. In the event the father does not seek to litigate the issue of custody, he should then seek to have parenting time equal to the time that the children spend with their mother. Fathers can actually end up being the non-custodial parent of their children and having all of the time to spend with their children that they desire.

Although many fathers assume that children’s natural caretaker would be their mother, this is not the status of the law in New York today and it has not been the status of the law in New York for many years. Fathers who seek to obtain custody of their children and are prepared to do battle in court have been more successful in obtaining their children’s custody in recent years. The first step a father should take if he seeks custody of his children is to retain a law firm which is committed to protecting the rights of fathers when dealing with family law situations.

Elliot S. Schlissel is a father’s rights lawyer representing fathers for more than 35 years throughout the Metropolitan New York Area.

Wife Found to be in Contempt for Violating Court Order

Father on beach with child

In a case in Westchester County, a husband brought an Order to Show Cause seeking him temporary custody of his child and directing his wife to return from India with the child. The wife had moved to India with the parties’ child and had failed to appear in court in New York. There were two separate court dates where the wife was told to appear in court and produce the parties’ child. In each of these occasions, she had failed to appear even though she was fully aware of the court dates and her responsibilities in New York.

Father Awarded Sole Custody

A hearing was held and Justice Linda Christopher awarded the father sole custody of the parties’ child. In addition, the judge signed an order directing the wife to immediately return the child to her father in New York.

Wife Held in Contempt

The wife took the position she had initiated an action in India prior to the court proceeding being started in Westchester County, New York. Justice Christopher found the wife’s allegations were untrue. She found the wife brought the action in India after the husband filed his Order to Show Cause in New York. Justice Christopher also found the wife had failed to provide any valid reason for failing to comply with the unequivocal court orders to bring the child back to New York. She found the wife’s actions prejudiced the husband and therefore she found the wife to be in civil contempt. She ordered the wife to return to New York for the purpose of purging her contempt and to immediately return the parties’ daughter to the custody of the husband in New York.

Conclusion

Skipping the country with the child with the hope of getting a better decision in a far off land will not necessarily work. There is a Geneva Convention on child custody. Many countries in the world are parties to this convention. In this case, the wife’s attempt to virtually kidnap her daughter and deprive the father of the custody he was awarded twas unsuccessful.

Mother Relocates to Texas and Seeks to Take Son With Her: Her Application is Denied

Two Parents Fighting Over Child

In a case before Justice James Pagones sitting in a Supreme Court Matrimonial Part in Dutchess County, New York, a mother brought an application to modify a stipulation of settlement which gave the child’s father temporary custody of their son. She sought to relocate the child to Texas. The mother had been a nurse in New York and she had moved to Texas to become a state trooper. Unfortunately, she was turned down for the state trooper’s job in Texas.

Court Refuses to Split up Children

Justice Pagones took the position that by moving to Texas the mother terminated her ability to spend time with the parties’ children. In addition she was no longer capable of attending counseling which had been set forth in the parties’ stipulation of settlement which had been so ordered by the court. In addition, the court found when she left her job as a nurse in New York, moved to Texas and didn’t receive a position as a state trooper she fell behind in her child support payments. She was now almost $50,000 behind in her child support payments. The court also found the mother sought to separate the parties’ children by moving one of them to Texas with her. Her application to the court proposed her daughter stay with the father in New York while the son moved to Texas with her. The court found this was not acceptable. Judge Pagones concluded the mother’s petition did not have supporting evidence that separating the two children would be in their best interest. He also found she was unable to offer a plausible submission of evidence that her daughter’s best interests would be enhanced by the court child support payments, taking her from her father, and moving her to Texas.

The father’s motion to dismiss the mother’s application was denied.

Conclusion

More and more judges are recognizing the valuable, loving relationship fathers have with their children. More and more fathers are having success in enforcing the laws in New York which makes custody decisions gender neutral.