Lake v. Lake

• Decision Date: 08 April 1993
• Citation: 596 N.Y.S.2d 171,192 A.D.2d 751
• Parties: In the Matter of Nicole LAKE, Appellant, v. Jonathan LAKE, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 171

596 N.Y.S.2d 171

192 A.D.2d 751

In the Matter of Nicole LAKE, Appellant, v. Jonathan LAKE, Respondent.

Supreme Court, Appellate Division Third Department.

April 8, 1993.

Finocchio & English (Mark J. English, of counsel), Syracuse, for appellant.

William C. Pelella, Binghamton, for respondent.

Steven Rothenberg, Law Guardian, Sidney, for Jordan Lake.

Before MIKOLL, J.P., and LEVINE, MERCURE, MAHONEY and CASEY, JJ.

MAHONEY, Justice.

Appeal from an order of the Family Court of Delaware County (Estes, J.), entered December 24, 1991, which, inter alia, granted respondent's cross petition, in a proceeding pursuant to Family Court Act article 6, for physical custody of the parties' child.

Petitioner and respondent were married in April 1985. Their only child, Jordan, was born five months later. In 1987 the parties separated. By virtue of a subsequent Family Court order they were granted joint legal custody of Jordan; physical custody was accorded to petitioner and respondent was permitted visitation every weekend from 5:00 P.M. Saturday to 6:00 P.M. Sunday. During the ensuing two years, respondent established a close relationship with Jordan, being in his company and caring for him not only during scheduled visitation times but also on those evenings when petitioner went to her part-time job or went out socially.

In December 1990, petitioner announced that she would be moving from Delaware County to Oswego County, some 120 miles away, and that she would be taking Jordan with her. Following the move, she petitioned Family Court to modify respondent's visitation schedule with Jordan from the originally ordered one day every weekend to two days every other weekend due to the move. Respondent cross-petitioned for sole custody based upon petitioner's relocation. During pendency of the proceeding, Family Court ordered that the visitation schedule be temporarily altered to provide respondent with such additional visitation rights as the parties may agree. Following a hearing, the court found that petitioner's move substantially impaired respondent's close relationship with Jordan, that this fact triggered applicability of the relocation rule with its attendant presumption that relocation was not in the child's best interest and that petitioner did not adduce sufficient evidence of exceptional circumstances necessitating the move so as to rebut the presumption. Accordingly, it ordered that physical custody of Jordan be transferred to respondent. Petitioner appeals.

It is well established that in situations where a custodial parent seeks a geographical relocation that substantially deprives the noncustodial parent of access to the child, a presumption arises that relocation is not in the child's best interest (see, e.g., Matter of Lavelle v. Freeman, 181 A.D.2d 976, 977, 581 N.Y.S.2d 875; Hathaway v. Hathaway, 175 A.D.2d 336, 337, 572 N.Y.S.2d 92). In order to sustain the move in such cases and to rebut the presumption, the custodial parent must show the existence of exceptional circumstances (see, Hathaway v. Hathaway, supra, at 337, 572 N.Y.S.2d 92). However, it is now equally well established in this Department that the above-described relocation rule is inapplicable in instances where the relocation is not so distant as to deprive the noncustodial parent of regular and meaningful access to the child (see, e.g., Matter of Schaefer v Brennan, 170 A.D.2d 879, 880, 566 N.Y.S.2d 705; Matter of Cassidy v. Kapur, 164 A.D.2d 513, 564 N.Y.S.2d 581).

In our view, the record evidence establishes that petitioner's relocation has not substantially deprived respondent of access to Jordan. While Family Court apparently based its application of the relocation rule upon the fact that respondent's customary pattern of frequent contact with Jordan, which contact exceeded that contained in the original custody order, had changed as a result of the move, this is not the benchmark against which...