Church v. Church-Corbett
| Citation | 214 A.D.2d 877,625 N.Y.S.2d 367 |
| Decision Date | 20 April 1995 |
| Docket Number | R,CHURCH-CORBET |
| Parties | In the Matter of Timothy S. CHURCH, Appellant, v. Pamela M.espondent. |
| Court | New York Supreme Court Appellate Division |
Andrew C. Jacobs, East Greenbush, for appellant.
Bloomberg & Magguilli (Michael C. Magguilli, of counsel), Albany, for respondent.
Before MERCURE, J.P., and CREW, YESAWICH, PETERS and SPAIN, JJ.
Appeal from an order of the Family Court of Rensselaer County (Hummel, J.), entered December 17, 1993, which, inter alia, denied petitioner's application, in a proceeding pursuant to Family Court Act article 6, for sole custody of the parties' minor child.
Petitioner and respondent were married in October 1986 and separated in February 1990. There is one child of the marriage, born in 1987. The parties entered into a separation agreement in June 1990 which provided for joint custody of the infant with primary physical custody of the infant with respondent. The separation agreement was incorporated but not merged in a judgment of divorce granted in 1992. The separation agreement contains no provision for relocation.
In August 1992 respondent married Daniel Corbett. 1 Corbett is an enlisted member of the United States Navy having served approximately 12 years; he is a career Naval officer. Respondent and the infant moved to Long Island, where Corbett was assigned, after the marriage. Petitioner took no initiative to prevent the move. In December 1992 the Navy informed Corbett that his duty station was about to be changed. Corbett's options were overseas duty for approximately three years, or service on a ship, which had a home port in the Far East, for approximately four to five years. Corbett's request to be stationed in the United States was denied. Corbett thereafter accepted orders for a three-year assignment to Italy.
In May 1993 petitioner filed a petition to prevent the relocation or, in the alternative, for a modification from joint legal custody to sole custody with him. Family Court held a hearing at which both petitioner and respondent were represented by counsel. The infant was represented by a Law Guardian. After the testimony of several witnesses, an in camera interview with the infant and a review of a report submitted by the Law Guardian, Family Court found exceptional circumstances for the move based upon its finding that the livelihood of respondent's new husband depends on the move to Italy. Family Court then determined that the infant's best interest was served by continuing the infant's primary residence with respondent and that, in light of current visitation patterns, the relocation would not substantially alter the quantity of petitioner's visitation with the infant. Family Court denied the petition and ordered a modification of the visitation schedule. Petitioner now appeals.
We affirm. The pertinent law regarding relocation, as recently set forth by this court, is as follows:
[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 ; see, e.g., Matter of Lake v. Lake, 192 A.D.2d 751, 752 ; Matter of Atkin v. McDaniel, 181 A.D.2d 188, 189 ; Matter of Lavelle v. Freeman, 181 A.D.2d 976, 977 . The presumption may be rebutted "upon a showing of exceptional circumstances by the relocating parent" (Hathaway v. Hathaway, supra, at 337 . The emerging trend which justifies relocation requires proof that the move is necessitated by economic necessity rather than economic betterment or mere economic advantage (Matter of Atkinson v. Atkinson, 197 A.D.2d 771, 772 [emphasis in original]; accord, Matter of Raybin v. Raybin, 205 A.D.2d 918, 613 N.Y.S.2d 726).
"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" (Matter of Atkinson v. Atkinson, supra, at 772, 602 N.Y.S.2d 953). Each case must be considered on its individual facts, considering the relative burdens on the parties, as well as the involvement of the noncustodial parent in the life of his or her child (see, Matter of Bennett v. Bennett, 208 A.D.2d 1042, 1043, 617 N.Y.S.2d 931, 933; Matter of Radford v. Propper, 190 A.D.2d 93, 98, 597 N.Y.S.2d 967). In this case Corbett's military relocation orders were neither solicited nor welcome and, in fact, Corbett requested and was denied a change of orders to allow the family to continue its residence in the United States. Such exceptional circumstances justifying relocation may include a situation where a custodial parent seeks to accompany a new...
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