Radford v. Propper

• Citation: 597 N.Y.S.2d 967,190 A.D.2d 93
• Parties: In the Matter of Jody RADFORD, Respondent, v. Ricky PROPPER, Appellant.
• Decision Date: 10 May 1993
• Court: New York Supreme Court Appellate Division

Page 967

597 N.Y.S.2d 967

190 A.D.2d 93

In the Matter of Jody RADFORD, Respondent, v. Ricky PROPPER, Appellant.

Supreme Court, Appellate Division Second Department.

May 10, 1993.

Tenzer, Greenblatt, Fallon & Kaplan, New York City (Leonard G. Florescue, of counsel), for appellant.

McKee, Dorris, Peltz & Barnes, Jericho, (Harry Peltz, Jr., of counsel), for respondent.

Kovit & Molloy, Jamaica (Meryl L. Kovit, of counsel), Law Guardian on behalf of the child.

Before MANGANO, P.J., and BRACKEN, SULLIVAN and BALLETTA, JJ.

BALLETTA, Justice.

The courts of this state are regularly called upon to make decisions which affect the personal lives of people involved in divorce and remarriage. Where the divorce is acrimonious and the parties are enmeshed in the emotionalism that accompanies such trauma, judges must ferret out the truth and make judgments which will not only be fair to the parties but will also most assuredly affect their future lives. Some of the most difficult and troublesome cases that a court is called upon to resolve involve custody and visitation issues, including the determination of what constitutes the best interests of the child. The mobility of our society creates even greater problems in those cases where the custodial parent wishes to relocate with the children of the marriage to an area at a distance from where the noncustodial parent resides. While the court does not ignore the competing interests of the parents, we are nevertheless charged with the responsibility of protecting the child and making our decisions based upon the best interests of the child. The law is well established, and we have long recognized, that those interests require meaningful visitation which must be frequent and regular. For this reason, a custodial parent relocating to a distant place must show, as a threshold, that exceptional circumstances exist warranting that relocation, since such a move will, in and of itself, be detrimental to the relationship which a child can have with a noncustodial parent. This thorny problem becomes even more complicated where, as here, the distance is not that far in terms of actual mileage (in this case about 90 miles from the mother's home and about 50 miles from the child's former residence) but is far enough to disrupt the relationship between the noncustodial parent and the child. Not every move will require a custodial parent to show that exceptional circumstances exist to warrant a relocation. In those cases where the noncustodial parent asks the court to prevent a relocation, we must first determine if the relocation is so great as to trigger the threshold requirement of showing exceptional circumstances. What then is a distant move? We shall take this opportunity to provide a framework for the analysis of such situations.

The parties were married in June 1982 and have one child, Steven, born on May 10, 1983. In early 1985 the mother moved out of the marital home in Brooklyn, New York, and the parties were subsequently divorced in May 1986. Pursuant to a separation agreement, which was incorporated but not merged in the judgment of divorce, the father and mother shared joint custody of the child, with the child's primary residence being with the father. The mother was to have visitation on every Tuesday and Thursday evening from 6:00 P.M. to 8:00 P.M., alternate weekends, alternate holidays, and four weeks in the summer. Furthermore, the judgment of divorce provided that the parties agreed that neither party could take Steven out of New York, except for day trips to New Jersey and Connecticut, without prior notice to the other party. After the divorce, the father and child continued to reside with the child's paternal grandmother, who was the child's primary caretaker.

In March 1990 Steven's mother commenced a proceeding to modify the judgment of divorce to obtain sole custody of Steven. After forensic examinations and a hearing, the Family Court, Queens County, by a decision and order dated October 4, 1991, denied the mother's application for a change in custody. The court noted that Steven had lived with his father in the same home in Brooklyn since the divorce. The court also noted that it was not convinced that the child's emotional condition would necessarily be improved by a change of custody. The court concluded that while neither parent was unfit, under all the circumstances, it was in Steven's best interests to remain in the physical custody of his father since, in its view, his father could better provide him with a stable environment and continuity.

Within a few weeks after the Family Court's decision, the father informed the mother that he intended to remarry and would be relocating with the child to New Jersey from Brooklyn. The mother thereupon filed a petition seeking to enjoin the child's removal to New Jersey. The Family Court, on December 11, 1991, granted the application to the extent of enjoining the father from removing the child to New Jersey until it had made a final determination in the matter. However, on December 18, 1991, the parties stipulated to a modification which allowed the father to take Steven to New Jersey provided that it did not interfere with the mother's visitation, that Steven continued to attend his current school in Brooklyn, and that Steven's permanent residence remained in Brooklyn. The Family Court also ordered new forensic evaluations.

Subsequently, a hearing was held before the Family Court (Clark, J.) commencing March 25, 1992. At the hearing, it was established that after Steven's father had remarried, the father and his new wife decided to move to her condominium in Lawrenceville, New Jersey, which is about 90 miles away from Steven's mother's home in Bethpage, New York. They had also contracted to purchase a new home which was under construction in nearby Cranbury, New Jersey.

Both Steven's father and his new wife were employed by the Continental Insurance Company. However, while she worked full-time in New Jersey, he divided his time between the company's Manhattan office and its Cranbury, New Jersey office. The father testified that he wanted to move to New Jersey because it would save his new wife commuting time, they could afford more in New Jersey, it was a better environment for Steven, and the school districts were excellent.

The father further testified that he was "flexible" regarding any new arrangements for visitation and stated that he would even meet Steven's mother halfway at some point on Staten Island. However, he did state that he would not be willing to transport Steven the entire way to the mother's house in Bethpage because the two-hour trip would be "unduly burdensome".

Steven's mother testified that she attended Steven's Little League games, his school plays, and his school conferences. She also testified that while it was only 32 miles from her home in Bethpage to Steven's residence in Brooklyn, it was over 90 miles to Lawrenceville, New Jersey, and that the ride could take up to three hours.

Initially, the Law Guardian made no recommendation as to which parent should have physical custody of Steven. However, by letter dated August 28, 1992, the Law Guardian informed the parties' counsel and the Family Court that the father had moved Steven to New Jersey in violation of the court's restraining order. Noting that the school year was about to begin, the Law Guardian expressed the view that in light of the father's disturbance of the status quo by removing Steven from Brooklyn, Steven should be enrolled in a school in Bethpage.

By a decision and order dated September 11, 1992, the Family Court found that the father's move was solely for his convenience and for that of his new wife. The court further found that although the move was not intended to foreclose visitation, it would have the practical effect of terminating the weekday visitation and limit the mother's ability to be involved in Steven's school life. Moreover, the father was better able to visit Steven since the mother had to care for another infant, and he regularly worked in Manhattan. Accordingly, the Family Court determined that it was in the best interests of the child for his physical custody to be transferred to his mother. The court also established a visitation schedule for the father. The father's application to this court for a stay of the Family Court's order was denied.

It is well established that an award of custody is a matter which rests within the sound discretion of the hearing court (see, Krebsbach v. Gallagher, 181 A.D.2d 363, 364, 587 N.Y.S.2d 346). Since such a determination depends upon an assessment of the credibility and character of the parties, the findings of the hearing court, which had the advantage of seeing and hearing the parties and their witnesses, will generally be accorded great deference (see, Eschbach v. Eschbach, 56 N.Y.2d 167, 173, 451 N.Y.S.2d 658, 436 N.E.2d 1260; Schouten v. Schouten, 155 A.D.2d 461, 547 N.Y.S.2d 126; Hemphill v. Hemphill, 169 A.D.2d 29, 36-37, 572 N.Y.S.2d 689; Blundell v. Blundell, 150 A.D.2d 321, 322, 540 N.Y.S.2d 850). Nevertheless, "[a]n appellate court would be seriously remiss if, simply in deference to the finding of a Trial Judge, it allowed a custody determination to stand where it lacks a sound and substantial basis in the record" (see, Matter of Gloria S. v. Richard B., 80 A.D.2d 72, 76, 437 N.Y.S.2d 411; see also, Krebsbach v. Gallagher, supra; Klat v. Klat, 176 A.D.2d 922, 923, 575 N.Y.S.2d 536).

This court has long recognized that "wherever possible, the best interests of a child lie in his being nurtured and guided by both of his natural parents" and that "a divorced, noncustodial parent and his children jointly enjoy a natural right of visitation" (see, Daghir v. Daghir, 82 A.D.2d 191, 193, 441 N.Y.S.2d 494, aff'd, 56 N.Y.2d 938, 453 N.Y.S.2d 609, 439 N.E.2d 324; see also, Weiss v. Weiss, 52 N.Y.2d 170, 175, 436 N.Y.S.2d 862, 418 N.E.2d 377...