Hemphill v. Hemphill

• Decision Date: 24 June 1991
• Citation: 572 N.Y.S.2d 689,169 A.D.2d 29
• Parties: , 60 USLW 2120 Lauren G. HEMPHILL, Respondent, v. David G. HEMPHILL, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 689

572 N.Y.S.2d 689

169 A.D.2d 29, 60 USLW 2120

Lauren G. HEMPHILL, Respondent, v. David G. HEMPHILL, Appellant.

Supreme Court, Appellate Division Second Department.

June 24, 1991.

Fink Weinberger, White Plains (Barbara Ellen Handschu, Henry S. Berman, Neil A. Fredman, Alton L. Abramowitz and Sandra B. Edlitz, of counsel), for appellant.

Shea & Gould, New York City (Jacalyn F. Barnett, of counsel), for respondent.

Before BRACKEN, J.P., and KUNZEMAN, KOOPER, BALLETTA and RITTER, JJ.

KUNZEMAN, Justice.

On this appeal, the noncustodial parent maintains that his right to meaningful visitation with the parties' children would, in effect, be eliminated by his former wife's relocation of the children to London, England, where her new husband resides. Conversely, the plaintiff argues that the trial court properly found that her remarriage constituted an "exceptional circumstance" and that the relocation of the children to London was in their best interests. It is well settled that if exceptional or compelling circumstances prompt the move, the ultimate governing standard in cases of this nature is not the convenience of the parents but, rather, the best interests of the children. At the outset, a review of the underlying facts, which are essentially uncontroverted, is in order.

The parties were married in May 1977 and have two issue, who are currently nine and seven years old. After a three-week trip to London, during which she was auditioning as a singer, the plaintiff informed the defendant in August 1986 that she wanted a divorce. The parties initially worked out an informal agreement by which each one would be independent, notwithstanding the fact that they would continue to reside together in the marital residence in Westchester County. On April 7, 1988, the parties entered into a separation agreement which directed, inter alia, that the former marital residence in Mount Kisco be sold, that the plaintiff have custody of the children, with liberal visitation rights for the defendant, and that the defendant pay maintenance and child support to the plaintiff. The separation agreement, which was negotiated by the parties with their respective counsel, contained no radius clause limiting the custodial parent's right to relocate.

Shortly after the divorce became final, the defendant moved out of the marital residence. After the marital residence was sold, the plaintiff moved to Lawrenceville, New Jersey, in order to be near her parents, and because she allegedly could not afford to reside in Westchester County. As a consequence of the increased distance between the parties, the plaintiff adopted a routine of bringing the children to the Yale Club in Manhattan on Fridays so that the defendant could pick them up there for their weekend visitations. On Sundays, the plaintiff would meet the defendant and the children in Manhattan and then drive home to Lawrenceville. This arrangement allegedly ceased when the defendant raised an objection to the plaintiff's plan to relocate with the children to London.

In May 1989 the defendant moved to enjoin the plaintiff from moving to London with the children. In the alternative, he sought a change of custody from the plaintiff to himself in the event that the plaintiff made the move to London. Simultaneously, the plaintiff commenced an action in New Jersey for permission to relocate to London with the children. The jurisdictional issue was apparently rendered moot when the plaintiff agreed to submit the controversy to the New York courts, despite an apparent defect in service of the New York papers by the defendant.

During the pendency of this action, the plaintiff married John Goldsmith in July 1989. While the defendant's motion was pending, the plaintiff and the children established residence in her parents' home near Trenton, New Jersey.

In August 1989 Justice Miller appointed Dr. Laurence Loeb as psychiatrist and Virginia Knaplund as Law Guardian. Both the psychiatrist and the Law Guardian recommended that custody remain with the plaintiff, with liberal visitation with the defendant. In his written report, Dr. Loeb unequivocally set forth his finding that neither parent is unfit and that it is in the best interests of both children to have frequent access to both parents. Dr. Loeb further noted that "[a]lthough both children love both parents, my impression is that they see their mother as being the more emotionally nurturing". The Law Guardian emphasized the fact that the plaintiff had been the children's primary caretaker since birth.

After a lengthy hearing, the Supreme Court denied the defendant's motion. The order modified the visitation provisions of the parties' separation agreement to the extent of awarding the defendant visitation for six weeks during the summer and four out of the five school vacations during the year. It further directed that the plaintiff incur the expenses for the children's round-trip travel, as well as one round-trip airfare per year for the defendant, should he elect to visit the children in England.

In an accompanying memorandum decision, the court found that the plaintiff's remarriage to John Goldsmith, a reinsurance broker for the Lloyds of London Insurance Companies, who was Chief Executive Officer of his company with an annual salary of approximately $200,000, and whose "business and livelihood depend upon his living and working in England", constituted an exceptional circumstance within the meaning of controlling case law. The court also made a finding that the best interests of the children dictated that the plaintiff remain the custodial parent and be allowed to relocate to London with them. It was emphasized that "[t]his conclusion is reached only with great difficulty and with no intent to cast aspersions on defendant's fitness as a parent or his devotion to his children".

The defendant now appeals from this determination. Under the particular circumstances of this case, we find that the defendant's motion was properly denied.

It bears emphasis, at the outset, that the key factor with respect to custody and visitation issues is the welfare of the children. Whenever possible, the best interests of a child lie in being nurtured by both natural parents (see, Daghir v. Daghir, 82 A.D.2d 191, 193, 441 N.Y.S.2d 494, affd. 56 N.Y.2d 938, 453 N.Y.S.2d 609, 439 N.E.2d 324). As the Court of Appeals has ruled, where the physical and emotional well-being of a child is concerned, it is anomalous that his or her protection should be made to depend upon the vindication of the rights of the parents. Moreover, while legal custody may reside with one or both of the parents, the placement of custody with one does not necessarily terminate the role of the other as psychological guardian and teacher ( see, Weiss v. Weiss, 52 N.Y.2d 170, 174-75, 436 N.Y.S.2d 862, 418 N.E.2d 377).

In addition to the overarching rights of the children and the interests of the noncustodial parent, custodial parents have rights as well. Among the latter is the right to remarry, which may legitimately, if only rarely, warrant "a dramatic change of locale" (Daghir v. Daghir, supra, 82 A.D.2d at 194, 441 N.Y.S.2d 494, citing Weiss v. Weiss, supra, 52 N.Y.2d at 177, 436 N.Y.S.2d 862, 418 N.E.2d 377). "The search, therefore, is for a reasonable accommodation of the rights and needs of all concerned, with appropriate consideration given to the good faith of the parties in respecting each other's parental rights" (Daghir v. Daghir, supra, 82 A.D.2d at 195, 441 N.Y.S.2d 494). The courts' approach to issues of this nature is on an ad hoc basis (see, Blundell v. Blundell, 150 A.D.2d 321, 324, 540 N.Y.S.2d 850).

Applying these principles to a specific set of facts, this court has countenanced a move by a custodial parent of two children from Long Island to Londonderry, New Hampshire (see, Blundell v. Blundell, supra ). The move was prompted by the mother's desire to be closer to her parents and her brother and by the prospect of full-time employment and diminished living expenses. Significantly, the mother had expressed a desire to promote continued visitation by the father and had proposed a rather liberal schedule which would provide visitation on alternative weekends, during school recesses and during the summer months. The mother even volunteered to drive the children to a midway point between New Hampshire and New York in order to facilitate the father's visitation. Of further significance was the fact that Londonderry, New Hampshire, is only approximately 30 to 40 miles distant from Logan Airport, from which point shuttle services to New York's LaGuardia Airport operate regularly. On those facts, this court determined that the proposed visitation schedule would insure the father regular and meaningful access to the children. Accordingly, upon a balancing of the equities, the mother was permitted to move to New Hampshire, subject to liberal visitation by the father (see, Blundell v. Blundell, supra ).

In Zaleski v. Zaleski, 128 A.D.2d 865, 513 N.Y.S.2d 784 this court sanctioned a relocation of the mother, with the parties' three children, from Long Island to Syracuse. While noting that the subject move was not to a distant jurisdiction, the court emphasized the fact that the mother, who had always been cooperative with respect to the father's visitation rights, had proposed a liberal visitation schedule. Although the relocation might have decreased the frequency of the father's visits, the proposed visitation schedule was deemed to afford the father regular and meaningful access to the children. Moreover, in Zaleski, as well as the instant case, the parties' separation agreement did not purport to restrict the geographical movements of the custodial parent.

Similarly, in Martinez v. Konczewski, 85 A.D.2d 717, 445 N.Y.S.2d 844, affd. 57 N.Y.2d 809, 455 N.Y.S.2d 599, 441 N.E.2d 1117, this court sanctioned a relocation to Florida where the relocation...