Atkinson v. Atkinson

• Decision Date: 21 October 1993
• Parties: In the Matter of John S. ATKINSON, Respondent, v. Beth M. ATKINSON, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 953

602 N.Y.S.2d 953

197 A.D.2d 771

In the Matter of John S. ATKINSON, Respondent, v. Beth M. ATKINSON, Appellant.

Supreme Court, Appellate Division Third Department.

Oct. 21, 1993.

Chernin & Gold (Sam P. Monachino, of counsel), Binghamton, for appellant.

Jo A. Fabrizio, Endicott, for respondent.

Before WEISS, P.J., and MERCURE, CARDONA, MAHONEY and CASEY, JJ.

WEISS, Presiding Justice.

Appeal from an order of the Family Court of Broome County (Hester Jr., J.), entered December 21, 1992, which, in a proceeding pursuant to Family Court Act article 6, inter alia, denied respondent's cross petition to relocate with the parties' children.

Petitioner and respondent were divorced in 1989. A written separation agreement made June 20, 1989 provided for joint custody of Kristen (born in 1984) and Joshua (born in 1986) with the primary residence given to respondent. The agreement was confirmed by a Family Court order dated December 12, 1989. Petitioner exercised the visitation provided in the agreement and order regularly until mid-February 1992 when respondent relocated with the children and her paramour from Broome County to Florida. By order to show cause dated February 20, 1992, petitioner was granted temporary custody of the children and sought to have them returned to New York. Following respondent's answer and cross petition to validate her relocation to Florida, and after an evidentiary hearing, Family Court held that respondent's relocation was unlawful and deprived petitioner of meaningful visitation, and ordered respondent to return with the children to Broome County; upon her failure to comply, custody was to be awarded to petitioner. This appeal by respondent ensued.

It is well recognized that a nisi prius court has authority to prevent a custodial parent from relocating with the children, in the absence of exceptional circumstances, when the move will necessarily frustrate the visitation rights of the noncustodial parent (see, e.g., Daghir v. Daghir, 56 N.Y.2d 938, 453 N.Y.S.2d 609, 439 N.E.2d 324; Priebe v. Priebe, 55 N.Y.2d 997, 449 N.Y.S.2d 472, 434 N.E.2d 708; Weiss v. Weiss, 52 N.Y.2d 170, 436 N.Y.S.2d 862, 418 N.E.2d 377; see also, Hemphill v. Hemphill, 169 A.D.2d 29, 32, 572 N.Y.S.2d 689, appeal dismissed 78 N.Y.2d 1070, 576 N.Y.S.2d 216, 582 N.E.2d 599). Further, it is well established that an appropriate court may compel the custodial parent to return the children to a location not unreasonably distant from the residence of the noncustodial parent or face loss of custody (see, Sanders v. Sanders, 185 A.D.2d 716, 718, 585 N.Y.S.2d 891; Leslie v. Leslie, 180 A.D.2d 620, 622, 579 N.Y.S.2d 164; but cf., Rybicki v. Rybicki, 176 A.D.2d 867, 871, 575 N.Y.S.2d 341).

It is equally well settled that the "best interest of the child" standard applies to all child custody cases (Domestic Relations Law § 70[a]; Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260; Matter of Farmer v. Dervay, 174 A.D.2d 857, 858, 571 N.Y.S.2d 148, lv. dismissed 78 N.Y.2d 1041, 576 N.Y.S.2d 210, 582 N.E.2d 593) and that a geographic relocation which substantially affects the visitation rights of the noncustodial parent gives rise to the presumption that "such relocation is not in the child's best interest" (Hathaway v. Hathaway, 175 A.D.2d 336, 337, 572 N.Y.S.2d 92; see, e.g., Matter of Lake v. Lake, 192 A.D.2d 751, 752, 596 N.Y.S.2d 171; Matter of Atkin v. McDaniel, 181 A.D.2d 188, 189, 585 N.Y.S.2d 849; Matter of Lavelle v. Freeman, 181 A.D.2d 976, 977, 581 N.Y.S.2d 875). The presumption may be rebutted "upon a showing of exceptional circumstances by the relocating parent" (Hathaway v. Hathaway, supra, 175 A.D.2d at 337, 572 N.Y.S.2d 92). The emerging trend which justifies relocation requires proof that the move is necessitated by economic necessity rather than economic betterment or mere economic advantage (see, Matter of Radford v. Propper, 190 A.D.2d 93, 101-102, 597 N.Y.S.2d 967; Sanders v. Sanders, supra; Matter of Lavelle v. Freeman, supra; Matter of Bonfiglio v. Bonfiglio, 134 A.D.2d 426, 428, 521 N.Y.S.2d 49). The desire to make a "fresh start" will not suffice (Handschu, Outside Counsel--Conflict in Appeals Courts: No Geographic Relocation, NYLJ, Jul. 28, 1993, at 1, col 1; see, Sanders v. Sanders, supra, 185 A.D.2d at 718, 585 N.Y.S.2d 891; Holsberg v. Shankman, 171 A.D.2d 1067, 569 N.Y.S.2d 44). If the relocating custodial parent has made a sufficient showing of exceptional circumstances, the focus shifts to the standard of whether the best interests of the children will be furthered by the move (see, Matter of Lake v. Lake, supra; see also, Matter of Hollington v. Cocchiola, 180 A.D.2d 635, 636, 579 N.Y.S.2d 700; Kuzmicki v. Kuzmicki, 171 A.D.2d 843, 844, 567 N.Y.S.2d 779). This standard may include "exceptional financial, educational, employment, or health considerations * * * which necessitate or justify the move" (Richardson v. Howard, 135 A.D.2d 1140, 523 N.Y.S.2d 272; see, Poretsky v. Poretsky, 176 A.D.2d 713, 715, 574 N.Y.S.2d 796), but the remarriage of the...