Opinion
13/01649
01-17-2015
Steven J. Barnard, Plaintiff, v. Lindsay Joyce-Barnard, Defendant.
Lawrence J. Schwind, Esq. Lacy Katzen LLP Attorneys for Plaintiff Rochester, New York Alan L. Offen, Esq. Attorney for Defendant Rochester, New York Lisa Serio Siragusa, Esq. Attorney for the Child(ren) Rochester, New York
Lawrence J. Schwind, Esq.
Lacy Katzen LLP
Attorneys for Plaintiff
Rochester, New York
Alan L. Offen, Esq.
Attorney for Defendant
Rochester, New York
Lisa Serio Siragusa, Esq.
Attorney for the Child(ren)
Rochester, New York
Richard A. Dollinger, J.
In this application, the Court faces a difficult task. The biblical threat of dividing a child is no longer imaginable but, when two quality parents live 90 miles apart and cannot agree on where the child should reside, this Court strains to find a Solomnic resolution that will accommodate the child's best interests and provide a "meaningful relationship" with both parents.
In this divorce action, the parties agreed that they would hold the equitable distribution issues in abeyance and participate in a hearing confined solely to the question of where the child should reside: either in Andover, New York (where the mother and her extended family currently reside) or 90 miles away in Greece, New York (where the father owns a home and has full-time employment.) This court must resolve which location and living circumstances would serve the best interests of this young child.
The parties concede that this hearing is not governed by the Court of Appeals decision in Tropea v. Tropea, 87 NY2d 727 (1996) which applies only to post-judgment matters involving relocation. Instead, the resolution of this residence question, in advance of the judgment of divorce, rests solely as a "best interest" determination. Matter of Quistorf v. Levesque, 117 AD3d 1456 (4th Dept. 2014) (inasmuch as this case involves an initial custody determination, "it cannot properly be characterized as a relocation case which the application of the factors set forth in Matter of Tropea v Tropea need be strictly applied"); Matter of Saperston v Holdaway, 93 AD3d 1271, 1272 (4th Dept. 2012) ("Although a court may consider the effect of a parent's relocation as part of a best interests analysis, relocation is, but one factor among many in its custody determination").
The facts are mostly undisputed. The couple were married in Rochester, New York in 2010 and a year later, their first and only child was born in Rochester. The couple resided in a single-family home in Greece, which the husband inherited from his family. The husband has had steady employment as an assistant manager in a large automobile operation and earns approximately $100,000 per year, plus health insurance and other benefits. He has worked at his current employer for more than a decade. The wife has had a varied career, holding a series of jobs. After the child was born in 2011, she worked as a bank teller in Rochester. They periodically visited the wife's extended family in Andover. At the hearing, the wife acknowledged that the husband wanted to permanently live in Rochester and she testified that she agreed "to try it." When asked by her own counsel, "was it worth it" the wife responded "no" and added "I missed my family basically." Both parties acknowledge that the wife was the primary caretaker for the child. This role was a consequence of the husband's work schedule - he worked most weekdays and occasional Saturdays. When the wife was working, the couple used daycare for the child. The husband testified that when he was not working, he performed daily tasks with his daughter: feeding, clothing, bathing, attending doctor appointments, etc. The wife admits that when the husband was home it was a "joint effort" with the child, but that they did not spend a lot of time together because of the husband's work.
In August 2012, when the child was a year old, the wife moved out of the marital residence and moved to her family's home in Andover, New York. The husband testified that she sent him a text message and left her wedding ring and credit cards on a counter in the marital residence. For a time, the wife drove daily to Rochester to work, and used their daycare provider. This arrangement continued until she found employment in Andover. The husband did not immediately commence an action to seek residence with the child. The facts before the court lead to the conclusion that the father had a reasonable perception that the wife might return to the Rochester area, as she had not completely cut her ties there. In addition, there is credible evidence that the husband considered moving to Andover. His wife's sister-in-law testified that the husband told her he would consider relocating to Andover if they could "work things out." He does not contest this evidence and, in fact, admitted that he held out hope that he might reconcile with his wife, but after a few months and a tense visitation over Christmas with the wife's family, he decided to consult counsel. During the pendency of this action, the parties agreed on a "half-way exchange" of the child at an agreed upon location nearly halfway between their respective residences. This court made it clear to both parties that the fact that the child resided in Andover during the pendency of this case would not be a factor in the court' final determination. It does not suggest any lack of fitness on the father's part or reflect a diminished interest in having the child reside with him in Rochester.
In explaining her departure, the wife states that she told the husband that "she was not happy" and that she missed her family. At no point during the trial did she testify that the move from Greece to Andover was motivated because it was in the child's best interests, but states that the child's best interests would be met by "strong family support." She testified that she did not want to live in the Rochester area because she "didn't have any support" and she would not have had "anybody to help me." When asked what help she needed, she said "help with anything, with daycare anything." She decided that if she stayed, she "wouldn't have had anybody, any family, any friends." When asked whether "basically your support group would not be present," the wife acknowledged that her support group was the rationale for moving to Andover. When questioned by her husband during the period after she left, she admitted that she told him that she "wasn't happy in Rochester." Under cross-examination, she testified that she moved "to be with her family." She also acknowledged that she had never, before leaving the Rochester area and taking the child with her, she had never contemplated "how that would impact his relationship with [the daughter]." Based on these facts, as found by the court, the court can only conclude that the mother decided to make her life easier by bringing the child to the mother's support network in Andover. While this move was not primarily motivated by the child's best interest, it begs the more important question: is keeping the child in Andover in the child's best interests?
The distance between Andover and Greece precludes any regular visitation by the father in Andover or, for that matter, by the mother if the child resides in Greece. The drive is at least 90 minutes each way, and even more time-consuming during the winter months. During the pendency of this action, the couple arranged a transfer of the child in Dansville, New York, a destination approximately halfway between Greece and Andover. The husband testified that on an average work day, he cannot leave work until 6:10 PM, and that if he left his employment at that time, he could not get to Andover until nearly 8:00 PM. Given the young age of the child, that virtually precludes any visitation by the father on his work days. He also works some occasional Saturdays, making it substantially difficult to visit on those weekend days. The father also testified - without much contradiction - that it would be financially impossible for him to move to Andover. He testified that the job opportunities for someone with his skills were markedly reduced in the smaller market area of Andover, and that it would be unlikely that he could find a job with the same or even a comparable salary. The wife never contested this claim by the husband. In contrast, the wife's work career has been marked by frequent job changes in retail banking or service employment. She had worked at several locations in Rochester during her stay there and, after relocating to Andover, found employment quickly in the retail banking industry. For purposes of evaluating this couple's financial status, the wife has marketable skills in any number of locations, while the husband's income is almost entirely dependent on remaining in the Rochester area.
There was extensive testimony over the wife's conduct with the child while in Andover and her communication with the father over the child's whereabouts. The wife moved with the child to new residences in Andover without notifying the husband in advance, informing only after the move had occurred. In addition, she moved in with her boyfriend, but never gave the husband any advance notice. The wife found a pediatrician in Andover, enrolled the child in daycare, and nursery school, and never told the husband. (Under cross-examination, the father admitted that, after he had been given the names of new providers, he had never followed up or contacted the new pediatrician or the daycare provider. ) He stated that while he had attended doctor's appointments in Rochester for the child, it was too difficult to get to doctors' appointments in Andover, which usually occur during the day.
The father acknowledges that his girlfriend had moved in with him and that he had not told the mother that an unrelated woman was living with him when the child resided with him.
The father acknowledged under cross-examination that the wife had informed him of the new daycare provider, and further acknowledged that he had given a different answer in interrogatories previously submitted. The father also admitted that he had not made any further inquiry concerning the daycare provider after he was informed who it was by the wife.
There is some distinction in the two home environments that are an option for the child. The father testified that he owns his home in Greece and it has everything the child needs: her own bedroom, a playground, and a fenced-in yard. He also testified that he had extended family in the Rochester area. The wife did not testify to her current residence, which she shares with her boyfriend. She acknowledges that she had moved at least three times in the last 16 months. While her own residence has changed multiple times, she testified that the family support network has remained constant
With respect to the interactions with the child and the environment in Andover, the wife testified that she lived only half a mile down the road from her parents. All of her witnesses described the close relationship between the mother and child. When asked about the child's best interests, wife said she was the primary care provider, has scheduling flexibility to pick her up and take her anywhere, and strong family support. Her current boyfriend described the interactions between mother and child as " all OK, nothing extraordinary." The evidence establishes that the mother has a strong bond with the child. But, one fact, undisputed at trial, suggests an important concern to this court. When the sister-in-law was asked how the child interacted with the mother's current boyfriend, the witness said "simply, like a parent." This unguarded comment, from one of the wife's relatives, suggests that the boyfriend, at least to outward appearances, has assumed the role of the child's father, a fact that the court, as evidenced in the later portion of this opinion, cannot lightly ignore.
The evidence also establishes a similar strong relationship between the father and daughter, even though the child has been located in Andover for more than a year. The father testified that he took a vacation day to go to her first day of school. At one point, when asked how he would like to be actively involved in his daughter's life, the father needed to check his emotions, stating "I would like to go to her, you know, first day of school. Watch her get on the bus . . . go to her doctor appointments, see her in school plays, and things she does daily . . . ask her how her days went, how her homework is going, maybe even help her with that if I can. Sit with her at dinner. Take her for ice cream. Have sleep-overs with her friends." Asked whether he could enjoy those parental rituals if she resides in Andover, the father said he would not be able to, "because it's too far away to be involved in her life daily. . . a lot of these things happen while I'm still at work or shortly after and the travel is too far for me to make." The wife does not contest the strong bond between father and child. She admits that the husband is a "great dad," adding that she has "no worries" and "gets along with him." Under cross-examination, she also acknowledged, somewhat reluctantly, that the child living in Andover "interferes" with the father's ability to be close to his daughter. When questioned sharply on this issue, she stated that she "did not agree 100 percent" that the distance impedes interactions between the daughter and father, but when asked directly whether the distance "prevents easy access to his daughter," she responded, "yes."
It is difficult for this court to draw any substantial distinction between the relationships that each parent has with the daughter. The mother has a vital relationship with her daughter and has also warmed up to her cousins and other relatives in Andover. The facts suggest an equally strong bond between the child and her father, even though he has been limited in his access to her. One final factor that emerged in the trial proof requires comment. The wife, under direct examination, was asked what she would do if this court ordered the return of the child to Monroe County to live with the father. She answered that she would then move back to Rochester because she wanted "primary custody" of the child and "I would do whatever is necessary to stay with my daughter." This comment is evidence that the wife understands that the child's best interests would be served if the child lived in close proximity to both parents. This statement casts some shadow over the wife's original decision to take the child to Andover. If she believes she should live close to the child to enhance the child's best interests, her choice to move 90 miles away, and increase the burdens for visitation by the father, seems to raise a significant question of whether she was, at that time, acting in the best interests of the child.
The criteria for evaluating the "best interests" of this child have been broadly stated to include "all of the circumstances" and focus on certain factors, such as the parents' ability to provide a stable home environment, the child's wishes, the parents' past performance, relative fitness of each parent, ability to guide and provide for the child's overall well-being, and the willingness of each parent to foster a relationship with the other parent. Eschbach v Eschbach, 56 NY2d 167, 172-174 (1982); Bowman v Engelhart, 112 AD3d 1187, 1187 (3rd Dept. 2014); Jeannemarie O. v Richard P., 94 AD3d 1346 (3rd Dept. 2012). The distance between the two current residences would seemingly loom large as a practical factor in deciding "best interests," but New York courts have seen it as a somewhat muted consideration. The Fourth Department intoned that although relocation arguably may impact a child's relationship with a parent, the location of the children was not a proper basis upon which to award primary physical custody to a parent "inasmuch as the children will need to travel between the parties' two residences regardless of which parent is awarded primary physical [residency]." Sitts v Sitts, 74 AD3d 1722, 1723 (4th Dept. 2010); see also Saperston v. Holdaway, 93 AD3d 1271, 1272 (4th Dept. 2012) (although a court may consider the effect of a parent's relocation as part of a best interests analysis, relocation is, but one factor among many in its custody determination); Santano v. Cezair, 106 AD3d 1097 (2nd Dept. 2013). Guided by these precedents, the distance factor, created exclusively by the wife's decision to move from the marital residence to a location 90 miles away, impacts "best interests," but is not a decisive - or even substantially weighty - factor.
The first of the Eschbach factors involves which primary residence will best promote "stability" for the child. The father's stability is well-documented: he has a solid job, earns a good salary, and has a documented earning history and capacity. His current home, which he owns, has all the necessary child amenities. He has never moved from his hometown and has no current intention of doing so. The wife has a history of modest-income employment, no defined career, and has moved three times in the 16 months prior to the hearing. As a consequence of the mother's moves, the child has been introduced to three new environments during the last two years and lived in four different locations. See Matter of Anson v Anson, 20 AD3d 603, 604 (3rd Dept. 2005) (court properly considered frequent changes in residence as a factor in determining "stability" for the child). In addition, the mother's current "stability" - her primary residence - is based on her relationship with her current boyfriend, who owns the house. While she described her relationship with the boyfriend as "great," there is no guarantee that this relationship will be permanent, of that she will continue to reside in the boyfriend's home. The wife's income is less than $20,000 annually. Without financial assistance - either from her extended family or her boyfriend - the wife will have difficulty supporting her self and the child. Saperston v. Holdaway, 93 AD3d 1271, 1272 (4th Dept. 2012) (describing a parent's earning potential as speculative and adding that without parental assistance the father would have difficulty supporting himself and the child). In this regard, the stability factor - to the extent it applies solely to the parents lifestyles and conduct - favors primary residence with the father.
The second Eschbach factor requires evaluation of the available home environments. The proof at trial seems to be nearly evenly split. The wife raises no complaints about the husband's home environment. Similarly, the husband offers no critique of the wife's current home environment. But, in considering this aspect, the court must note that the wife does not own the home she resides in, and stays there at the willingness of her boyfriend. In considering this factor, the court also needs to examine the extended family relationships because, as other courts have noted, the influence of other family members can be significant in weighing the best interests of the child. Matter of Nelson v. Perea, 118 AD3d 1057 (3rd Dept. 2014) (considering that the mother resides with her parents, with whom the child has a close relationship, and her extended family - several of whom are the child's age - live within close proximity to her home); Matter of Weber v. Weber, 100 AD3d 1244, 1246 (3rd Dept. 2012) (move would distance the child from his maternal extended family in New York and result in reduced visitation with the mother, he would be raised in close proximity to his cousins, in addition to receiving care from the paternal grandmother and father's sister). Emotional support from extended family can be sufficient to find emotional enhancement in a proposed move. A.D.G. v I.N.G., 44 Misc 3d 1230 (U) (Sup. Ct. Monroe County 2014); Vasquez v. Vasquez, 4 Misc 3d 1005 [A], 791 NYS2d 874, 2004 NY Slip Op 50719 [U] (Sup. Ct. App. Term 1st Dept. 2004) (emotionally, the children demonstrated no ill effects as a result of the move and the court concluded that the children will ultimately be enriched due to their close proximity to their grandparents, aunt and cousin); Other courts have cautioned that while a factor, links to extended family are not decisive. Matter of Francis-Miller v. Miller, 111 AD3d 632 (2nd Dept. 2013) (while the wife testified that the proposed relocation would offer her economic benefit because she can live rent-free in her parents' home and her mother can assist her with child care, these benefits do not outweigh the drastic reduction in the quantity and quality of the child's contacts with the father). In this regard, the wife has a solid support network in Andover: parents, siblings, in-laws, and cousins of the child. The husband acknowledges that the child, if living in Andover, would have close links with the wife's extended family. The wife testified - without contradiction - that the extended family support assists the child, as the child enjoys her exposure and interaction with her cousins and other family members. In contrast, the father, while testifying that he had friends and family in the Rochester area, could not point out any specific individual who had a strong relationship with the child. In this criteria, the factors balance out: the wife has a broad network of support among her family, but an uncertain home, while the father has the more dependable home environment, without the network of relatives and/or friends to assist in the care and development of the child.
The third Eshbach factor requires an analysis of the past performance of each parent. The mother has been the primary care giver of the child. That designation is not unusual, given the living arrangements in this nascent family. The husband had a job that required long hours and, as a corollary, provided a significant income for the family. The wife, who worked part-time, spent more time with the child and provided direct care. However, in this court's view, there is no evidence that the husband, consistent with his job responsibilities, neglected his childcare duties. He testified without contradiction that he fed and cared for the child, changed diapers, and attended to the child's everyday needs. The wife never testified to any deficiencies in the husband's care of the child. In addition, given the procedural posture of this case, it would be manifestly unfair to be critical of the husband's care of the child while she has been residing in Andover. There was some evidence that he has missed some special occasions, including the child's birthday, but this evidence was somewhat clouded by some last-minute changes in the daughter's location that would have delayed the father's visitation until late in the evening, rendering it virtually meaningless. As evidence of his commitment, the father took a day off from work to attend his child's first day in school and, every night, he asks that a picture of his daughter be sent to him. There was no evidence that the child was not properly cared for when visiting her father's home. There is no evidence that she was anything but pleased and enthusiastic to visit with her father. In short, this couple had typical parenting arrangements for a very young child: the father worked to generate income, the wife worked part-time and spent substantial time with the child. In this court's view, both parents performed well and consistent with their roles and there is little to differentiate these two fine parents based on their past performance.
The final Eschbach factor requires delving into each parent's relative fitness, including his or her ability to guide the child, provide for the child's overall well being, and foster the child's relationship with the non-custodial parent. Neither parent exhibits any unfitness. The proof at trial established that the husband, at one point, exhibited a temper over his wife's conduct, sending an ill-advised electronic message to the wife's family and, at another time, angrily destroying a computer at work. Both of these episodes occurred during the height of his frustration when there was discord between the couple and when the husband still retained some hope that his wife might reconcile and return to Rochester. He was obviously at wit's end. While these events were proven by the evidence, the court declines to find these episodes as evidence of any pattern of behavior that calls the husband's fitness into question. There is no evidence of any anger - or other adverse emotional response - to this young child. There is evidence that as the anger dissipated and the temporary visitation plan went into effect, the husband was able to communicate with his wife, and her family, without conflict.
A series of text messages and emails between the husband, the wife, and members of the wife's family were produced at trial. These messages contain vulgar references and accusations by the husband against his wife. The wife's responses are less than sympathetic and easily characterized as insensitive. This court declines to accord any weight to these messages, exchanged at a time of high tension between the couple. Neither side argued that these messages reflect the overall fitness of either parent.
The evidence establishes that both parents individually can properly care for the child and provide for her well-being. After the child was born, the husband set up the daycare arrangements in Greece through a family friend. The couple utilized the daycare in Greece without incident or any complaints from the wife. It worked so well that the wife transported the child back and forth to the Greece daycare for a time after she had moved to Andover. There is no evidence that father would not be able to restore adequate daycare for the child. The father lives in Greece, which has a solid school system and the child had a pediatrician in Rochester (which she could most likely return to). The wife found a new pediatrician, and set up daycare for the child when she moved to Andover. She enrolled the child in nursery school and took other steps as well. The court does not find any differentiation in these parents' ability to be a primary residential parent.
However, the final factor of this Eschbach analysis raises a serious question about the mother's ability to foster a relationship between the child and the father. This factor, as weighed by the courts, is critical in the "best interests" analysis. Matter of Koch v Koch, 121 AD3d 1201 (3rd Dept. 2014); Robert B. v Linda B., 119 AD3d 1006, 1008 (3rd Dept. 2014) (evidence that the custodial parent intentionally interfered with the noncustodial parent's relationship with the child is so inconsistent with the best interests of the child as to, per se, raise a strong probability that the offending party is unfit to act as custodial parent). The preponderance of the evidence in this case establishes that the wife, in electing to leave the marital residence and move to Andover, was motivated primarily by her own need for support, not because the move was in the child's best interests. When she left, she did so abruptly, and without provisions for the child to visit with the father. She never gave the father a chance to negotiate how and when visitation would occur before she left. She knew that this very young child, less than two years old, could not voice any objections or concerns about her father, and the wife substituted her judgment about her best interests for that of her daughter. She never discussed how the father, living 90 miles away from Andover, would have a "meaningful relationship" with the child before she left. In her direct testimony and under cross-examination, the wife acknowledged that the move was in her best interests: she got the family attention and support she needed. She testified that she moved because she would have help and assistance from her family in caring for the child. Other courts have suggested that a parent's feelings of loneliness and isolation do not justify separating the child from the other parent. Matter of Francis-Miller v. Miller, 111 AD3d 632 , 636 (2nd Dept. 2013) (the court declined to give credence to the mother's rationale that she sought permission to relocate primarily because she feels lonely and isolated). In addition, while she claimed she wanted support and assistance with the child, there is no proof that she ever complained to the husband about the lack of assistance in caring for the child before she moved. There is no evidence that the wife asked the husband to fund additional childcare or provide alternate arrangements for the wife to be assisted in caring for the child. There is no evidence that she ever asked the husband to change his work schedule to provide him with additional time with the child and give the wife relief.
In addition, by failing to regularly communicate with the husband at various times during her transition to Andover, the wife undercut the ability of the husband to be a parent. The wife admitted that she never told the husband where the child was residing when she left the marital residence and failed to tell him that she was moving in with her boyfriend. She did not tell him in advance that the child was placed in daycare or that she had enrolled the child in nursery school. The wife unilaterally made decisions that she considered in the best interests of the child without consulting the child's father. In short, even though there was no prior custody or primary residence order in place, the wife, by declining to consult with the husband prior to making vital parenting decisions, acted like a sole custodial parent. These actions give this court little confidence that such behavior would not be unilaterally undertaken in the future. The husband, faced with fait accompli by the wife's unilateral actions, was relegated to the sidelines, simply watching matters progress in Andover over which he had little input. The clear consequence to this court is that the wife would continue a pattern of consulting the husband only after she had made decisions regarding the child's care, living arrangements, activities, and schooling.
This court cannot ignore that the central action taken in this matter - the decision to leave Greece and move to Andover - was made by the wife in her own best interests and without considering the consequences of the move on the father's relationship with his daughter. This court cannot permit a parent to displace the other parent from the child's life. The wife, by moving and taking the child with her, and never discussing this radical change with the husband, placed her own interests over those of the child.
Several other factors that surfaced at trial merit consideration. First, the court does not question the sincerity of the father's desire to have a role in his child's life. During the trial, when asked why he sought primary residence, the father nearly broke down as he described his desire to participate in his daughter's daily life. This participation would be limited by her residing more than 90 miles away. Having heard the father and observed his demeanor, this court concludes that his desire to be a daily participant in his daughter's life is genuine, longstanding, and unshakeable. In considering the choices in this case, the father's vibrant declaration of his desire to be a part of his child's life cannot be overstated. In addition, this court is concerned, that the distance separating the father and his daughter, combined with the mother's choice to live with her boyfriend, could easily alter the child's view of her father. The child now shares breakfast and dinner with the mother's boyfriend. He reads her stories and enjoys the daily interactions of living under the same roof. It is easily foreseeable that the boyfriend, as a constant fixture in the child's life - picking her up from school, watching her dance recitals, standing on the sidelines, cheering her on, helping with homework, etc. - could displace the father. As the "quasi-parent" role expands, it is easily foreseeable that the distant father, even utilizing his best efforts (as he professes to want to do), might recede in influence. As the Court of Appeals noted, the "undesirable design" of integrating a child in an extend family can easily jeopardize the isolated parent from the child.
Very important in this connection was the court's determination that if the father were to receive primary custody, he would endeavor to fully integrate the child into his separate family, significantly downplaying the role of the child's natural mother, jeopardizing both the child's sense of identity and his relationship with his natural mother. A similar undesirable design on the part of the mother was not perceived. In seeking to effectuate the "first and paramount concern" of the best interest of the child, the trial court properly considered the effect that an award of custody to one parent might have on the child's relationship with the other parent.
Bliss on behalf of Ach v. Ach, 56 NY2d 995, 998 (1982) (citations omitted). Having heard the father's heartfelt passion to be a part of his child's life, this court is extremely reluctant to allow any unrelated person to step into the father's shoes. Importantly, the court acknowledges that this risk - the introduction of a new "friend-of-the-parent" in the family setting - is a two-way street: the father lives with a girlfriend as well. There was no evidence at the trial that the father's girlfriend has a relationship "like a parent" with the child. In contrast, the wife's sister-in-law described the boyfriend's relationship with the child as "like a parent." In evaluating this comment, this court acknowledges that there is no evidence that the child ever referred to the boyfriend as "a parent" or "dad" or "father." There is no evidence that the mother ever encouraged the child to make that statement, that the boyfriend has taken any actions to even suggest to the child that he is acting "like a father." But, while neither the mother or boyfriend have any "culpability" in this situation, the fact remains that a person who has substantial daily exposure to a very young child, can displace the natural parent in the child's eyes. Posner v Lewis, 80 AD3d 308, 315 (1st Dept. 2010) (abrupt exclusion of a parental figure may be damaging to the emotional well-being of that child). Faced with an admission that the boyfriend is perceived acting "like a parent" - in a statement uttered by one of the wife's witnesses — and without evidence that the husband's girlfriend has the same relationship with the children, this court concludes that there is much more substantial risk that the mother's relationship with her boyfriend jeopardizes the father's role in his daughter's life rather than vice-versa. This court acknowledges that divorce and new choices of spouses by divorced parents always introduces new factors into children's lives. In this case, when distance - dictated by the mother's sole choice and without consultation with the father - and the introduction of a new "parent" surfaces, this court must even more seriously scrutinize conduct, motives and potential consequences.
In other contexts, New York courts have frowned on a parent attempting to diminish the other parent "as a parental figure in the eyes" of children. L.R. v. C.R., 44 Misc 3d 1208( A) (Sup. Ct. Richmond Cty. 2014). While there is no evidence of any active conduct by the mother or her boyfriend in this case, the result of the father's limited involvement, given the distance, and the boyfriend's constant residence in the house with the mother, is of little consequence to the father, who sees his apparent strong bond with the child frayed and perhaps substituted by another adult male.
Second, during the hearing, the wife, acknowledged that she would be willing to move back to Rochester to preserve the relationship with her daughter. This admission is an acknowledgment by the wife that daily - or at least regular and frequent - interaction with the child by both parents is critical to the child's development. This admission seems to reverse her earlier decision. In 2012, she decided that it was in the child's best interests that she should be the primary residential parent, and they should move to Andover. As a consequence of that choice, her husband would be forced to take extraordinary steps to see his child. She knew that he could not move and leave his job, and yet she hoisted the travel and other responsibilities on him, as a consequence of her choice. Now, faced with the prospect that she might be stripped of her role as the primary residential parent, the wife is willing to make the accommodation that she refused to consider in 2012. She is willing to move to a location closer to the marital residence to accommodate, in a reasonable way, both parents ability to have a "meaningful relationship" with their child. This acknowledgment is only made when faced with the prospect that her role as the primary residential parent might be reversed by this court. Having raised her own interests above those of her child, it seem ironic that now, after extended litigation, and facing a loss of her daily role in her child's life, she admits she would consider another alternative that would easily accommodate the father.
This court has considered whether the father can have a "meaningful relationship" with his child if they continue to live 90 miles apart. In New York, courts that have considered distance as a factor in parent-relationships have repeatedly intoned the words "meaningful relationship" to describe long-distance parenting. Matter of DiMele v. Hosie, 118 AD3d 1176. Appellate courts have remitted cases to allow a court to "devise a visitation schedule which would reduce the child's weekday travel, but create a meaningful relationship between the father - who lived in Suffolk County and child - who lived in Brooklyn. Matter of Cisse v Graham, 120 AD3d 801 (2nd Dept. 2014); see also Matter of Kevin McK. v. Elizabeth A.E., 111 AD3d 124 (1st Dept. 2013) (acknowledged that the10-year-old child would see his father less frequently, but extended holiday and weekend visits, along with summer visits, would allow for the father and child to maintain a strong relationship (and remitted for consideration of same). The same "meaningful relationship" between father and son could occur, according to the Appellate Division Second Department, if the father lived in New York and the child lived in Geogia. Hall v. Hall, 118 AD3d 879,881 (2nd Dept. 2014) (liberal visitation and extended visits during the summer and school vacations "will allow for continuation of a "meaningful relationship" between parent and child). The same aspirational goal - a meaningful relationship between father and child - could be created by extended visits during the summer and school vacations, when the parents lived in Michigan and New York. Ortiz v. Ortiz, 118 AD3d 800, 801 (2nd Dept. 2014). The First Department says a "meaningful relationship" can exist between a parent in New York and a four-year-old child in Florida. Matter of Karen Michelle F. v. Wilfredo C., 116 AD3d 561 (1st Dept. 2014). In another context, the Fourth Department held that a meaningful relationship would be difficult for an eight-year-old to maintain with his mother if he moved to Maryland. Matter of Yaddow v. Bianco, 115 AD3d 1338 (4th Dept. 2014). For this court, a "meaningful relationship" with a child - especially a very young child - is founded upon day-to-day interaction with the child, or at least weekly, and certainly more frequently than holidays or extended vacations. A "meaningful relationship" requires that a parent be present as their child grows, faces each day, confronts their first day of school, their first failure, their daily disappointments. A parent who lives hours or thousand of miles away, communicates mainly by Skype, and/or sees their child in a form of "parental camp" - only on vacations and during the summer - cannot, in any way, shape or form, be described as having a "meaningful" parent/child relationship. To suggest otherwise converts this phrase into a form of legal fiction, a description that suggests a distant parent - seeing a child seeing a child for week here and there, or for summer vacation - can somehow have a nearly equivalent experience as the residential parent. It is, in this court's opinion, simply not true. The truth lies in a broader statement from New York's appellate courts: "the best interests of the child [generally] lie in his [or her] being nurtured and guided by both . . . parents." Matter of Rodriguez v Silva, 993 NYS2d 733, 735 (2nd Dept. 2014); Matter of Diaz v. Garcia, 119 AD3d 682 (2nd Dept. 2014). Or, as the Second Department noted, "[I]n order for the noncustodial parent to develop a meaningful, nurturing relationship with [his or] her child, visitation must be frequent and regular." Matter of Rodriguez v Silva, at 735.
Often, courts have used the phrase to describe a failed relationship. Matter of Frewell v. Ratzel, 993 NYS2d 608 (4th Dept. 2014) (father was a total stranger to the child).
In this court's view, the use of the words "meaningful" and "relationship," should be used in the context of "as meaningful a relationship as the circumstances will allow." The circumstances — distance, travel time, age of the child, parent's ability to have accommodations while the visitation occurs — will define how "meaningful" the relationship between the child and the distant parent is.
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A parent living 1,000 miles away - or in this case only 90 miles away - bears all the consequences of the distance, and its impact on their ability to influence their child. This court admits that older children, with whom a parent has already established a bond, has a better chance of sustaining a "meaningful relationship" with a parent located hours away. But in the instance of a young child, who is still searching to establish a bond with a parent, the distance will undermine any "meaningful relationship," because the child lacks daily or frequent exposure to the parent. In this case, if the young child continues to live 90 miles away, the father will have a long-distance relationship with his child that could hardly be called "meaningful" in any way. The father's testimony, in this case, is testament to what a true "meaningful relationship entails. He describe his desire to be present daily, help the child face the vicissitudes of a young life, help with homework, prepare her meals, and read her stories. If he is consigned to a remote status - with periodic visits and "extended stays" - his relationship will be just as "remote," and have a shrunken "meaning" to him and his child. This reality is further exacerbated by the appearance of a new boyfriend in the residential parent's life. The risk that the child will perceive the daily adult male in the household as a parent or parent equivalent erodes this court's confidence that this father can have any type of meaningful relationship with his child over the 90 mile distance.
A final factor, is the child's desire. The attorney for the child has concluded that the child will prosper in either home. The court notes that the child is very young and has lived in four places in her early life. She has been introduced to different homes and different environments. There is no evidence that the daughter has not adopted well to change and no suggestion that she would not thrive, regardless of the decision by this court.
This case involves a complicated question, with two fit parents, and a variety of complex factors. In this court's view, the child's best interests would clearly be served by having two parents with a substantial role in her daily life. That goal cannot accommodated with 90 miles separating their respective households. The father has a more stable living environment and his household provides the best chance for long-term stability. The fact that the mother has agreed that she would move to Rochester to have active role in her daughter's life suggests that she can accommodate the return of her child to Rochester. These parents are suited for joint custody. They have communicated well, albeit after some stops and starts, and appear to have the ability to talk about the child's interests and needs. There is no evidence of alienation, and strong evidence that they could work out a sharing of time with the child that will give the child's the best of both parents input.
The easy option would have the court grant the mother her wish: allow her to keep the status as a primary residential parent if she elects to return. But, at this stage, there is no proof of what a relocation to Rochester might mean to the wife. She offers no suggestions on where she would live or with whom. There is no proof that she has any job prospects, although the evidence clearly establishes that she has in the past sought, and quickly obtained, employment. There is no evidence that the mother, even with child support and a job, would generate sufficient funds to provide a reasonable living accommodations for the child in either Andover or Rochester. In this court's view, the child best interests dictate that the child should have primary residence with her father in Greece. If the wife remains in Andover, the court would grant the mother visitation every other weekend. She will also have substantial holiday and weekend visitation, although those dates and times have not been decided. This court acknowledges that the wife, facing a 90 mile commute to see her daughter, would encounter the same consequences as the father - the loss of a "meaningful relationship" with her daughter. Her hurdles are no less difficult. But, in weighing the father's stability and other factors, the child should primarily reside with her father. If the wife moves to Rochester within 10 miles of the marital residence and in the same school district, this court would consider some form of split residence arrangement, and give each parent a substantial portion of the child's time to allow them both to continue to jointly raise their daughter and give both of them an equal chance to have a "meaningful relationship with the child."
In conclusion, this case represents a difficult decision choice for this court. The application of Eschbach factors, when weighing the testimony and giving credibility where warranted, tilt slightly in favor of the husband. Furthermore, because no parent should undermine a "meaningful relationship" between a child and the other parent, by unilaterally moving the child 90 miles away, this court concludes that the best interests of the child would be achieved by the child residing in Greece with her father. The request for the child to live in Andover is denied. The child will live with her father in Greece and the parties should provide a visitation schedule for the court, consistent with the principles set forth in this decision.
SUBMIT ORDER.
Dated:January 17, 2015____________________________
Richard A. Dollinger, A.J.S.C.