In Mathie v. Mathie, 2009 NY Slip Op 6124 (2^nd Dep’t 2009), the parties divorced in 2005 after entering into a stipulation of settlement which provided for joint legal custody of their son, Ryan, with physical custody to the mother and visitation to the father. 

The parties’ stipulation stated that the mother was to reside in Nassau or Suffolk County for so long as the father resided in one of those counties.  The negotiated parenting schedule for the father consisted of alternate weekends, except to accommodate the father’s hunting schedule.  The father did not request time with Ryan during several major holidays, school vacations, or summer vacations. 

As a result of the father not regularly seeing or communicating with Ryan in 2005, Ryan’s schoolwork suffered and he became depressed.  Ryan’s therapist suggested that the father visit with Ryan during Monday evenings and Friday evenings when he did not have weekend visitation.  By the following summer, the father had cancelled most Monday visits with Ryan. 

In 2006, the mother remarried and informed the father that she wished to move with Ryan to New Jersey to live with her new husband.  The father objected and the mother instituted an action to allow her to relocate to New Jersey with their son.  While the father filed a counterclaim for an award of attorney’s fees, he did not seek custody of Ryan as an alternative to the mother’s relocation application.

On the appeal, the Court stated that when parties enter into a stipulation to resolve custody, those stipulations will not be modified unless there is a sufficient change in circumstances and modification is in the best interests of the child.  The Court further provided that the parent seeking the relocation must justify their interest as against the non-custodial parent’s fundamental right to frequent access or visitation. 

The factors that must be considered in this type of case include each parent’s reasons for seeking or opposing the move, the quality of the relationships between the child and the custodial and non-custodial parents, the impact of the move on the quantity and quality of the child’s future contact with the non-custodial parent, the degree to which the custodial parent’s and child’s life may be enhanced economically, emotionally and educationally by the move, and the feasibility of preserving the relationship between the non-custodial parent and the child through suitable visitation arrangements. 

In Mathie, the mother had been residing with Ryan in Long Island during the week to enable visitation by the father.  She resided in New Jersey with Ryan during her custodial weekends, and Ryan resided at the father’s home during the father’s custodial weekends.  As a result, Ryan had no sense of permanency and was living in three different homes. 

The Court determined that the mother had established that the Ryan’s best interest would be served by permitting the relocation, even though the relocation would result in more travel, approximately 60 miles to the father’s home.  Ryan would benefit from an extensive family support system in New Jersey, including the mother’s new husband and his children, the mother’s brother-in-law and his children, and the mother’s cousin and her children.  Additionally, the mother offered to be responsible for transportation of Ryan to and from the father’s house, causing the father no additional travel burden.

This entry was posted on Saturday, May 8th, 2010 at 8:00 am and is filed under Custody and Visitation. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.