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Custody, custody agreements, and relocation of children in a divorce
November 4, 2017
How does a Court decide who gets custody of the children?
It is well settled that in making a child custody decision the Courts are required to inquire and analyze the best interests of the children through a review of the totality of the circumstances. Weisberger v. Weisberger, 60 N.Y.S.3d 265 (2017). “The best interests of the child[ren] must be determined by a review of the totality of the circumstances” Matter of Preciado v. Ireland, 125 A.D.3d 662, 2 N.Y.S.3d 594; Eschbach v. Eschbach, 56 N.Y.2d 167, 171–172, 451 N.Y.S.2d 658, 436 N.E.2d 1260; Matter of Boggio v. Boggio, 96 A.D.3d 834, 835, 945 N.Y.S.2d 764).
In making a determination of the best interests of the child, the Courts must take into account many factors, including but not limited to the quality of the home environment, the parental guidance the respective parties provide, the contrasting ability of each parent to provide for the children’s emotional and intellectual welfare and development, the financial status and financial ability to provide for the children, the relative fitness of the parties, and how the effect of the decision of custody might have on the children’s relationship with the other parent. Mohen v. Mohen, 53 A.D.3d 471, 473, 862 N.Y.S.2d 75; see Matter of Moran v. Cortez, 85 A.D.3d 795, 796, 925 N.Y.S.2d 539.
However, a different policy of this Court and a higher threshold must be met before there can be a modification of a court-sanctioned agreement. While it is true that “No agreement of the parties can bind the court to a disposition other than that which a weighing of all of the factors involved shows to be in the child[ren]'s best interest” (Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 95, 447 N.Y.S.2d 893, 432 N.E.2d 765; see Eschbach v. Eschbach, 56 N.Y.2d at 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260), it is equally true that a more stringent standard of review controls where there exists a court Sanctioned custody agreement.
So, as to the “best interests” analysis when dealing with modification of an existing court sanctioned agreement, in order for the Court to modify it, it can only do so upon a showing that there has been a change in circumstances such that a modification is necessary to ensure the continued best interests and welfare of the child[ren]” Matter of Spencer v. Killoran, 147 A.D.3d 862, 863, 46 N.Y.S.3d 658, quoting Matter of O'Shea v. Parker, 116 A.D.3d 1051, 1051, 983 N.Y.S.2d 903; see Matter of Bodre v. Stimatz, 150 A.D.3d 1228, 1229, 52 N.Y.S.3d 872).
If the Lower Court errs and awards the child to the wrong party you have the right to appeal to the higher court. It is well settled that this Court may set aside a Lower Court custody determination if it lacks a sound and substantial basis on the record or is contrary to the weight of the evidence adduced at trial. (Trinagel v. Boyar, 70 A.D.3d 816, 893 N.Y.S.2d 636; see Matter of Selliah v. Penamente, 107 A.D.3d 1004, 1004, 968 N.Y.S.2d 177; Matter of Jackson v. Coleman, 94 A.D.3d 762, 763, 941 N.Y.S.2d 273). And in the Matter of Caruso v. Cruz,114 A.D.3d 769, 772, 980 N.Y.S.2d 137 the Court held that “while we are mindful that the hearing court has an advantage in being able to observe the demeanor and assess the credibility of witnesses, we ‘would be seriously remiss if, simply in deference to the finding of a Trial Judge,’ we allowed a custody determination to stand where it lacks a sound and substantial basis in the record” Matter of Caruso v. Cruz,114 A.D.3d 769, 772, 980 N.Y.S.2d 137, quoting Matter of Gloria S. v. Richard B., 80 A.D.2d 72, 76, 437 N.Y.S.2d 411; see Matter of James A.—S. v. Cassandra A.—S., 107 A.D.3d 703, 706, 967 N.Y.S.2d 99; Matter of Moran v. Cortez, 925 N.Y.S.2d 539.
In a relocation case it is well settled that the movant must prove that the child will benefit from being relocated and that somehow your circumstances are so much better that the child's best interests are to allow you to relocate. Perhaps you have better employment prospects, or more family support in another state? In weighing all factors, the Court will consider these factors as well.
If you are the moving party you must make a showing that the child would benefit from being uprooted from all of his or her school friends and activities enjoyed in New York. It is well settled that, in a relocation case, a court must consider the loss of benefits the child would have and the harm which would ensue if the move is permitted. In the Second Department case of Martino v. Ramos, 64 A.D.3d 657 (2009)the court held in pertinent part, that …”there is still a need to weigh the effect of the quantitative and qualitative losses that naturally will result against such other relevant factors as the custodial parent's reasons for wanting to relocate and the benefits that the child may enjoy or the harm that may ensue if the move is or is not permitted” (id. at 739, 642 N.Y.S.2d 575, 665 N.E.2d 145).
If you are planning to get a divorce in New York and you want to relocate to another state it is best to speak to a New York Divorce lawyer who has experience in this area of divorce. Deciding custody is one thing, but if you are asking the court to allow you to relocate to another state or county with the children there are specific facts that you must show to convince the Court it is in the best interests of the children and if you cannot do so then you probably will not be allowed to relocate the children.