In a recent decision, the Appellate Division of the Third Department (an upstate Appeals Court) found a mother who “clearly attempted to thwart and frustrate the father’s visitation” lost custody of her child. This case involves a mother who is a graduate of Cornell Law School, and a father who is an assistant professor of Mechanical and Aerospace Engineering at Cornell University.
The mother and father were married for a brief period of time and had a child. A decision was initially made by the trial court judge giving the father custody because the mother had violated a joint custody separation agreement that had been incorporated into a Judgment of Divorce. This agreement had given the mother physical custody of the child and the father parenting time (visitation with the child). The agreement specifically prohibited either the mother or the father from relocating without the consent of the other party or the court.
Mother Relocates
Shortly after entering into the joint custody separation agreement, the mother accepted a job in New Jersey. She relocated with her son over the father’s objections. After a court hearing, the Supreme Court Judge awarded sole custody of the parties’ son, Ethan, to the father.
The court in its decision stressed a party seeking to relocate has the burden of showing the relocation is in the child’s best interest. The mother claimed she took the only job she had been offered. This had forced her to relocate. The Court in its decision stated, “the record amply supports the conclusion that the mother was not entirely willing to include the father in decisions regarding the child.” The mother had acted hostile to the father when the parties exchanged the child.
Conclusion
Relocating a child is not as simple as most parents believe it is. The court will take into consideration the impact the relocation of a child will have on the parenting time (visitation with the child) of the other parent. When moving, the residential custodial parent should obtain consent of the other parent or bring an application to the Family Court or the Supreme Court and obtain a Court Order authorizing the relocation.
Elliot S. Schlissel is a father’s rights attorney representing fathers in child custody cases, regarding visitation problems and parenting time issues throughout the metropolitan New York area.
About Elliot S. Schlissel
