Solomon's Baby: Custody Relocation in New York
by Clifford J. Petroske, Esq.
There is no way to split a child in two; and yet, if there was, it would surely be in his/her best interest to become two halves. For many parents faced with being without their child when a former spouse meets "Mr./Ms. Right" or is otherwise compelled to relocate, this may seem like the only solution. Unless, of course, the child is from Ulster County where the Family Court in Stearns v. Baxter (655 N.Y.S2d 261, 1997) interpreted the new "best interests" standard for relocation by the custodial parent in a way that sought, first and foremost, to keep the child’s world together.
The mother sought permission to move to North Carolina with the child of the parties. There appears to have been no question of whether she truly loves the man she wants to marry there and start a new life with, and there was no issue of whether her son had strongly bonded to his mother during his seven young years. However, the court found that the network of family and friends in the area of the parties’ upstate Ulster County home, as well as the father’s active involvement in the child’s life and his academic success in school here in New York made this the child’s real home. The court then directed that the mother make the choice: stay and keep custody, or leave and lose it.
It may well be impossible to be completely fair to both parents when stuck with a choice between such basic interests — personal freedom of the custodial parent on the one hand, and the quality of the non-custodial parent’s relationship with the child on the other. Faced with such a difficult choice, the Stearns court focused instead on the child’s perspective, recognizing that if the interests of the parents compete substantially — i.e., the relocating mother has a much needed or very desirable new life awaiting her elsewhere, yet the father has an indisputably involved and loving relationship with the child or children — then the parents’ interests are no longer really relevant. The court is almost forced to view the relocation from the child’s perspective.
In Stearns, this meant that the child's success in his current school program outweighed the risk that he would do as well in an untried program in North Carolina. It meant that the child's established relationships with family and friends in Ulster County were more important than any emotional benefit that might accrue to the child should his mother be free to live happily ever after in a different state. This approach — considering the best interests of the child in light of the quality of all of his social and educational connections to his home — was recognized by the Court of Appeals, the state's highest court, in the groundbreaking decision in Tropea v. Tropea (87 N.Y.2d 727, 1996):
...each relocation request must be considered on its own merits with due consideration of all the relevant factors and circumstances and with predominant emphasis being placed on what outcome is most likely to serve the best interests of the child...it is the rights and needs of the children that must be accorded the greatest weight...(emphasis supplied).
In Tropea, the Wife sought judicial approval to relocate with the two children of the marriage to Schenectady, where she had already purchased a home with her fiancé, a well-established architect in the area. The father, who lived in Syracuse, about two and a half hours away from Schenectady, opposed the move and petitioned for custody. The court found that, while the father’s customary midweek visits would be impossible during the school term, the visitation schedule that the mother proposed would afford the father frequent and extended contact with his children. The court further found that the relocation would be in the best interests of the children.
The decision in Tropea re-defined the law in New York State regarding relocation by a custodial parent. It broke up a three part test that had been implemented by the Appellate Division (the court directly above the trial level court). Under the Appellate Division analysis, the parent seeking to block a relocation had to first show that the proposed move would deprive him/her of "regular and meaningful access to the child". Once this was established in the affirmative, the burden switched to the moving spouse, who had to show extraordinary circumstances before a move would be sanctioned. If extraordinary circumstances were adequately demonstrated, the court would go on to consider the child’s best interests. Unfortunately, the scope of the terms "meaningful access" and "extraordinary circumstances" varied from case to case.
In Tropea, the Court of Appeals responded to this confusion by tearing down the "artificial barriers to the courts’ consideration of all the relevant factors" erected by the Appellate Division’s three-tiered test. They held that, in all cases, the courts should be free to consider and give appropriate weight to all of the relevant factors, including but 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 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.
While, under the Tropea guidelines, all of these factors, and others, may be considered, the Court makes it clear that they are to be considered only to establish whether the relocation would be in the best interests of the child. In other words, the interests of the parents are not really at issue. In a very real sense, the Court of Appeals insertion of a "best interests of the child" standard into relocation cases signaled the end of the presumption that relocation is a bad thing for children; that it is only to be tolerated under the most compelling circumstances.
Ironically, the court in Stearns v. Baxter has brought the Tropea decision down to earth and in line with the caselaw it supposedly overturned. It applied the Tropea analysis and weighed all of the relevent factors, but concluded nevertheless: There still had better be a damn good reason to relocate with a child before it will be worth stripping the child of his ties to his home and community.