Opinion
15/00016
07-10-2020
JEFFREY H., Plaintiff, v. JOY J., Defendant.
Michael Schmitt, Esq., Attorney for Plaintiff, Rochester, New York Kaman, Berlove, Marafioti, Jacobstein & Goldman, LLP, Stephen M. Jacobstein, Esq., Attorney for Defendant, Rochester, New York Fero & Ingersoll, LLP, Timothy E. Ingersoll, Esq., Attorney for the Child, Rochester, New York
Michael Schmitt, Esq., Attorney for Plaintiff, Rochester, New York
Kaman, Berlove, Marafioti, Jacobstein & Goldman, LLP, Stephen M. Jacobstein, Esq., Attorney for Defendant, Rochester, New York
Fero & Ingersoll, LLP, Timothy E. Ingersoll, Esq., Attorney for the Child, Rochester, New York
Richard A. Dollinger, J.
A petition for relocation of a child plunges a trial court into that category of cases which, according to the New York Court of Appeals, "present some of the knottiest and most disturbing problems that our courts are called upon to resolve." Tropea v. Tropea , 87 NY2d 727, 736 (1996). Add to the murky legal mix, two parents who love their child, a child who loves both parents, no suggestion of any flaws in either parent's skills and attention, an undisputed preference from a pre-teen-aged child to relocate, but a substantial distance between the two households and the issue becomes a Gordian Knot, that challenges a trial judge - without the sword of Alexander or the wisdom of Solomon - to solve.
The legend of the Gordian knot was aptly explained in Prudential Insurance Co. of America v. National Park Medical Center, Inc. , 154 F.3d 812, 819 n.4 (8th Cir. 1998), as follows:
Gordius, King of Phrygia, tied his chariot to a hitching post before the temple of an oracle with an intricate knot, which, it was prophesied, none, but the future ruler of all Asia could untie. In the course of his conquests, Alexander the Great came to Phrygia, and, frustrated with his inability to untangle the "Gordian knot," simply sliced through it with his sword. His subsequent success in his Asian campaign has been taken to mean that his solution to the "Gordian knot" fulfilled the prophesy. The legend of the Gordian knot was aptly explained in Prudential Insurance Co. of America v. National Park Medical Center, Inc. , 154 F.3d 812, 819 n.4 (8th Cir. 1998), as follows:
Gordius, King of Phrygia, tied his chariot to a hitching post before the temple of an oracle with an intricate knot, which, it was prophesied, none, but the future ruler of all Asia could untie. In the course of his conquests, Alexander the Great came to Phrygia, and, frustrated with his inability to untangle the "Gordian knot," simply sliced through it with his sword. His subsequent success in his Asian campaign has been taken to mean that his solution to the "Gordian knot" fulfilled the prophesy.
The story of King Solomon is found in the Bible at 1 Kings 3:15-28 which recounts the story of two women coming to King Solomon to determine which one was the true mother of a baby. Solomon suggested that the women bring him a sword for him to cut the baby in half and award one-half to each woman. As it turned out, the true mother was identified by the woman who cried out not to kill the baby, and offered to concede maternity. According to the King, the woman who did not want the baby killed had to be the true mother. Champagne v. Higgins , 2016 R.I. Super. LEXIS 147, n.1 (Sup. Ct. R.I. 2016)
But, the knot needs to be loosened and here, the interwoven family strands - finely sliced as best the court can based on the facts and law — fall in favor permitting the child to relocate to his father's home.
The child's father petitioned family court to allow relocation of the child to Delaware. In response, the mother brought an application by order to show cause to change the custodial decision-making, declaring her to be the primary residential parent, giving her control over the child's activities and other collateral relief, all premised on the fact that the child would continue to reside and attend school in Monroe County. The father opposed the mother's application and asked for court approval to relocate the child to Delaware. After preliminary matters were resolved and the father's petition transferred to this court, the parties agreed to a hearing for this court to determine which residence - New York or Delaware - served the best interests of the child.
In this instance, the father, in seeking to relocate the child from Monroe County — where the divorce was litigated and executed - to Delaware, bears the burden of establishing, by a preponderance of the evidence, that the proposed relocation is in the child's best interests. Tropea v. Tropea , 87 NY2d 727, 736 (1996) ; Matter of McMuller v. Frank , 181 AD3d 1154 (4th Dept. 2020)
In determining whether the proposed relocation is in the child's best interests, this court must consider, among other factors:
"each parent's reasons for seeking or opposing the move, the quality of the relationships between the child and the custodial and noncustodial parents, the impact of the move on the quantity and quality of the child's future contact with the noncustodial 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 noncustodial parent and child through suitable [parenting time] arrangements."
Tropea v. Tropea , 87 NY2d at 740-741 ; see also Matter of Lynk v. Ehrenreich , 158 AD3d 1004, 1005 (3rd Dept. 2018).
In large measure, the decision rests exclusively with this court, which, as appeals courts have repeatedly advised, is in a superior position to evaluate a witness's testimony and credibility. Matter of Kates v. Simpson , 120 NYS 3d 414 (2nd Dept. 2020). The appeals courts in New York have accorded great deference to trial court determinations and will not disturb them if supported by a sound and substantial basis in the record. Matter of Emily GG. v. Tyler HH. , 154 AD3d 1097, 1098 (3rd Dept. 2017).
In considering these factors, several aspects of the Tropea test are undisputed: the evidence indicates the father relocated for employment for his current family in Philadelphia. His rationale for seeking relocation is a parental desire for more time with his son. The mother's opposition is equally compelling: she seeks more of her son's time. There is no evidence suggesting any rupture in the relationship between the parents and the child. The son, through his counsel, professes an abiding love and affection for both mother and father.
The proof before this court centers on factors involving the economic, educational, emotional enhancement of the child's life. Initially, this court can find little to differentiate the environments in each of his parents' homes. The mother lives in a suburban neighborhood: the father testified that his five-bedroom house is nestled in a similar neighborhood in Delaware. At the hearing, neither parent could find any fault in the child's living arrangements either here or in Delaware. The economics of the families were not discussed at length during the testimony before the court, but there is no evidence that one parent has a substantially higher income than the other and no evidence that cost-of-living or any other factor would differentiate between the quality of each household.
The size of a residence and the child having their own bedroom are factors that courts have considered in evaluating relocation issues. Matter of William V. V. Bridgett W. , 2020 NY App. Div. LEXIS 2113 (3rd Dept. 2020).
The major contrasting factor is a product of the parents' different educational backgrounds. The mother has an accomplished educational background: she holds a masters degree in special education for teaching students with disabilities and a doctorate in educational leadership. She testified that the child has two specific disabilities: a written expressive disorder and attention-deficit hyperactivity disorder (ADHD). She further testified that the child, now in the seventh grade, was identified in the third grade as having special needs. She testified that the child sees a psychologist once every week outside schools and he has previously participated in group therapy. The mother was concerned about the impact of travel on the child. She testified that when he returned from his father's home in Delaware, he was tired and it often took him several days to catch up.
Attention-deficit/hyperactivity disorder (ADHD) is a brain disorder marked by an ongoing pattern of inattention and/or hyperactivity-impulsivity that interferes with functioning or development. Each type of ADHD is tied to one or more characteristics. ADHD is characterized by inattention and hyperactive-impulsive behavior. These behaviors often present in the following ways:
(A)inattention: getting distracted, having poor concentration and organizational skills
(B)impulsivity: interrupting, taking risks,
(C)hyperactivity: never seeming to slow down, talking and fidgeting, difficulties staying on task. https://www.nimh.nih.gov/health/topics/attention-deficit-hyperactivity-disorder-adhd/index.shtml#part_145444 (visited 7/7/20).
In this case, there was no expert testimony on ADHD and its impact on the child, either in the short or long-term. There is also no evidence that the child was taking any medications for ADHD or seeking additional healthcare for this condition.
The mother testified that she helped the child on a regular basis. She worked with school officials to help the child to organize the structure of his week, keep a calendar and support him with the completion of homework. The mother hired a tutor to assist the child in handling mathematics. The mother said the child participated in a swim club two nights a week and also participated in a ski club. The mother also undertook usual activities in coordinating sleepovers and activities at her home and keeping her child involved in electronic gaming. The child participated in a youth group at a local church and she testified that she encouraged him to attend church.
The mother testified that she regularly emailed information to the father, but when asked, she described the fathers actions as "uncooperative." The mother further testified that in evaluating the father's involvement in academic affairs she did not notify the father of any meetings with school officials and left that notice up to the school.
In a spirited cross-examination the mother admitted that during the time that the father was living in Rochester, the father participated in meetings with the school officials. She also testified that during the time the father was living in Rochester, the child did not need an individualized educational program ("IEP"). She did testify, however, that in her view the father was attempting to block further intervention in the child's educational program. She admitted that after the father moved away and the child began to commute to Delaware, she repeatedly communicated with the school for assistance in the child's education program, but she never copied the father on any of those email messages. The mother also admitted that the father was excluded from weekly emails that she sent to the school about the child's educational advancement. The mother also admitted during cross-examination that the child missed substantial school time in the last year. But, when pressed, she could not point to the extended travel time to visit the father as a cause for those extended absences.
The mother called as a witness a social worker who facilitated a program called the PATH program for junior high school students who have social emotional needs that impact their academics. The witness testified that the child had been in the PATH program since he started middle school. She testified that the child had access to a resource room and that she met with him twice monthly for 20 minutes to assist the child in better identifying triggers to behavioral difficulties and better understanding of how his behavior affects himself and others around him. The counselor also testified that the mother participated in meetings with school officials to discuss the child's IEP, which was admitted as an exhibit at trial.
The witness confirmed that the child had a diagnosis of ADHD. The child struggled with verbal impulsivity and was interacting with his peers trying to gain attention through impulsivity and physically "getting in their case." When asked whether this was serving as "a class clown," the witness observed that she had seen the child perform in this manner. But, the school counselor also testified that the child attended regular education classes. When asked whether the child was doing well in school, the counselor testified he was doing "OK." Importantly, she also testified that the dispute between his parents impacted the child: she testified that the child said "I love both my parents and it's never going to end." When asked what that comment meant, the witness said: "I would say if he's bringing that up in the school environment that yes that impacts [him]." She also testified in support of the father by indicating that the child had told her that he wanted to live with his father during the school year and live with his mother during the summer
The school counselor testified that the mother was very active in her communications with the school. She admitted that when she sent emails concerning the child she sent them exclusively to the mother and not to the father.
The mother introduced a second witness from the school district, a social worker who is attached to the classroom that the child attended. She testified that the child had not been diagnosed with any form of disability in the third or fourth grade. She further testified that the child had been involved in a process called response to intervention and that team officials met to give the child more academic and social emotional support.
This social worker testified that the mother was cooperative in dealing with the child's educational demands. She also testified further that the father participated in emails and met face-to-face with school officials. Importantly, the testimony from this witness focused at a time when the father was living in the local area and therefore was readily available to participate in meetings and discussions with the school district. The district witness testified that there were appropriate responses to emails and other communications regarding the child from both parents. The witness also testified that any child that moved from the local school district with an IEP would have that document sent to the new school district along with all the supporting documentation.
As part of the proof offered by the mother, the court admitted the child's school records. The child's most recent analysis, stemming from a meeting with the school district's Committee on Special Education indicates that the child faces a number of educational challenges, but none that rise to a point of requiring drastic educational intervention. His reading skills were within average range for a student his age. In mathematics, the child's overall mathematical abilities were in the average range: he was able to handle simple mathematical calculations, but had some difficulty in answering multi step problems. With respect to writing, the child was below average when compared to his peers. The evaluation noted that the child writes very minimally and needs prompts and reminders to include all the information the task is requesting. With respect to study skills, the report suggested that the child needed to work very hard at home on school work and suggested that he needed continual parental monitoring on his homework production. On a cognitive and daily living score, the child was within average range.
In perhaps the most descriptive portion of the IEP, the following is noted: ... the child has a strong family support system at home. He enjoys playing video games and hanging out with his friends. The child is creative and has a great sense of humor. He has continued friendships from last year and worked on a closer level with the staff that support him year-to-year. The child states in his level one assessment that he would like to be a pastor when he gets out of school. He states that he learns best hands-on and working with others. His favorite subject was social studies because he loves to learn about history, especially American history.
The academic goals enunciated in the IEP included maintaining the child's focus and developing a self awareness to slow down his work in order to complete all tasks.
Most of the IEP involves details of the child's educational performance. The records do comment on some deficiencies in his self-confidence and indicate that he has some delays in executive functioning and social functioning which may affect his ability to be successful in a general educational setting. The report confirms his diagnosis of ADHD with a specific learning disability of written expression. The documents admitted in the hearing also included a confidential evaluation of the child approximately three months before the hearing. In the summary, the evaluation noted that the child has demonstrated low average to average scores in the area of math and sentence writing and an average in the reading. With respect to cognitive and perceptual abilities, the evaluation in March 2020 indicates, however, that his overall intellectual ability is within the average range.
In response to the mother's presentation, the father testified through remote video. The father was relocated to Delaware in the summer of 2019. His job with the Postal Service had relocated him. As a consequence of the relocation, the father earnestly sought to maintain a connection with his son. He testified that either on Friday afternoon or early Saturday he would pick up his son, often at a transition point in Owego New York and then drive his son back to Rochester on Sunday night.
He testified that he lived in a five-bedroom house and that his household included a four-year-old daughter. When his son visits with him, he testified that his son has his own bedroom. The father said the local school was approximately four to five miles away and that the child could take the bus to school. He also testified that either he or his wife was at home during the day. He had already made arrangements for a pediatrician to work with his son if the child relocated to Delaware. He testified that if the relocation was approved, he would take reasonable steps to ensure that the mother had visitation every other weekend, blocks of time in the summer and holidays in Rochester.
The father was also concerned about the large number of excused absences that his son had encountered while living in Rochester during the last year. He testified that his son had done well when he was out of school in Delaware and that he could take care of basic necessities. The father described him as happy and outgoing in Delaware. Finally, he testified that in his judgment, the child would do better and have less anxiety if the issues regarding the relocation were resolved.
Under cross-examination, the father acknowledged that the childhood had some medical issues which accounted for his absences from school. He also testified and acknowledged that he had to scramble at times to make appointments to pick up the child and that the mother had driven on occasion to make the connection possible. The father also acknowledged that his son had had some difficulties in school. He expressed a concern that his son may be taking on too much work which would overwhelm his ability to learn. He testified that he had no information on his son's interaction with a psychologist, but he acknowledged that it would be beneficial to continue the IEP that has been developed at his Rochester area school district if the child relocated to Delaware. The father also discussed the son's activities. He testified that there were a number of swim clubs nearby in Delaware and he described himself as "100% supportive" of his son's activities.
In this court's view, the father's testimony paints a portrait of a concerned and conscientious father. Although he was monitoring his son's educational performance from a distance, the father seemed to understand some of the difficulties that his son had faced in school. He seemed strongly committed to taking whatever steps are necessary for his son to adjust to a new educational environment. In short, this court can find little to critique in the father's testimony. He projects the image of a father seeking to achieve the best outcome for his son.
One final consideration impacts this court: the child has, throughout this process, opined that he would favor the relocation to Delaware. His attorney, an experienced and highly-respected attorney for the child ("AFC") described the child as conscientious and mature and that his thoughts and decisions were well-reasoned. Among other reasons seeking to relocate to Delaware, the child wanted to be part of the life of his younger half-sister in Delaware. See e.g. , Matter of William V. v. Bridgett W. , supra (bonding with other children as a factor in evaluating emotional factors in a relocation matter); Malcolm v. Jurow-Malcolm , 63 AD3d 1254 (3rd Dept. 2009) (relocation will further allow the children to spend meaningful time with their half sister, with whom they have a good relationship). Both the mother and father's counsel stipulated that the AFC, in stating the child's preferences, was accurately detailing the child's sentiments.
The child's age - 12 - gives the child's expressed preference some greater weight in his articulation of his own best interests, even though, as countless courts have directed, those views are not dispositive, nor should they be. See Matter of Masiello v. Milano , 118 N.Y.S.3d 739 (2nd Dept.2020) (9 & 10 year olds preferred to relocate with one parent and while the child's expressed preference in a custody proceeding is not determinative, it is some indication of what is in the child's best interests, particularly where, as here, there is undisputed evidence of the child's level of maturity and ability to articulate his or her preferences); Matter of Cindy F. v. Aswad B.S. , 176 AD3d 549 (1st Dept. 2019).
The merger of these facts into the contours of the Tropea doctrine favors permitting the relocation in this instance. First, undisputed evidence indicates the father relocated for employment for his current family in Philadelphia. Second, there is no evidence suggesting any rupture in the relationship between the parents and the child. The son, through his counsel, professes an abiding love and affection for both mother and father. In the scheduling accommodation discussed below, there is ample opportunity for the child to continue the strong bond that he has with his mother. Third, there is no factual basis to differentiate between the economic and emotional impact of this move on the child: there is no evidence of any economic disparity in the households and no evidence that relocation would diminish the son's extracurricular or other activities.
The educational impact of the move to Delaware is a more challenging issue - a tougher knot, so to speak — for the court. The mother's testimony and the school experts who testified attest that the child has educational challenges - linked in their judgment to the ADHD diagnosis — and remains, at best, an average student with difficulties in concentration and writing. But, several facts emerge that cause the court to pause in this analysis. First, the child attests to these processionals that the upset caused by the travel back and forth and the disputes between his parents during the last year have caused him distress and even the school expert suggested that these stresses impact the child in the classroom. Second, none of the school officials testified that the services given the child were unique or incapable of replication in another school district. There was no suggestion that the interventions and assistance given the child were unique in his current school district. There was no suggestion that the skills training and concentration exercises given the child were out of the ordinary.
Third, when the child enters the new school environment, the child's IEP from his current school district and the myriad reports regarding his skills and needs will accompany him, a fact which gives both parents an assurance that the new school district will not have to start from scratch in attending to the child's needs. Fourth, the father acknowledges the challenges his son faces and has committed to replicate the special attention that he needs in the new school environment. Fifth, this court acknowledges that mother's unique credentials as an educator cannot be duplicated by the father and the daily absence of her at-home educational assistance may impact the child's achievement. However, the child and this family live in a world of almost constant communication: the mother can check the child's homework and monitor his achievements on a daily basis, even though she lives 350 miles away. There is no reason why the world of school-to-parent "portals" viewed remotely through the Internet, Facetime, Skype and Zoom cannot permit this mother to closely observe her child's education from that distance. The court acknowledges it will not be the same as having his mother at his elbow, but the father's professed commitment, the mother's diligence, the ability to monitor through new technology, the fact that the child's IEP and other assessments will travel with him and the child's better sense of security after the relocation may make it easier for him to achieve.
The court notes that neither party introduce any expert evidence regarding the impact of continuing educational interventions on the child's learning. There is no expert evidence on which to make any judgment on whether the future school in Delaware can implement the same educational tools that have been utilized in the current school district. In that regard, the father's testimony that such services exist in Delaware seems to be sufficient for the court to conclude that the child's relocation will not endanger his educational advancement. See Matter of William V. v. Bridgett W. , supra .
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One of the Tropea factors - the child's emotional health and reaction to any change — also remains largely undisputed. The fact that the child will be living in Delaware and, in essence, commuting at certain times back to Rochester will complicate the child's maturing years. In considering that factor, the court notes that for almost a year, the child has been doing just that: traveling on alternate weekends to Delaware to visit his father and then returning home on Sundays to go back to school. It is undisputed that the travel time is between five and half and six hours each way. Thus, on any "visitation weekend," the child ends up spending 10-12 hours in the car, traveling and only spends 24-36 hours in the residence of his father in Delaware. If the tables are turned and relocation granted, the same would be true for the mother: the child's alternate weekend visitation would mean that the mother will have only 24 -36 hours every two weeks for most of the school year. This substantial reduction in interactions between mother and child requires that accommodations would need to be made during non-school period, especially the summer and school breaks.
In addition, this court cannot also ignore the changes that are in the offing for a 12-year-old child. At the dawn of the teenage years, a child's life changes. The impact of peers, the need for friendships, the impact of extracurriculars will disrupt the child's interactions with his parents and family. These new aspects of his life consume time and attention away from his parents. Therefore, either parent, living a substantial distance away from the child, would likely face less of the child's attention during these transformative years. In this instance, either parent, living 350 miles away, will find that the distance between them and their child will only be amplified during the child's junior high and high school years. The fact that the child will be required to jump in a car and travel six hours each way to visit a parent will be a challenge to the child's extracurricular and social life and could easily sow the seeds of discontent between the child and the distant parent. This unavoidable and unintended consequence will require both of those joint custodial parents to be vigilant in preserving the bond between mother and son.
This court also declines to change the current joint custody and joint decision-making arrangement between this couple. The mother asked for that relief if the child stayed in New York: the court cannot find any indication that the father sought what amounts to unilateral decision-making if the child moved to Delaware. Regardless, the court declines to disturb the joint-custody plan laboriously spelled out in the 15-page custody and residency agreement signed five years ago. The agreement requires the couple to "jointly make those decisions affecting the child's mode of life, education, health, welfare, consistent with his best interests." The mother deserves an equal voice in the child's future, even if the child lives with his father. The choice of activities, extracurriculars, providers of educational or healthcare assistance and other critical matters in this child's life should be joint decisions and the father should both consult with and obtain the approval of the mother before committing the child on any of these issues, especially if the activities threaten to reduce the mother's time with her child. By maintaining the role joint decision-making status, the mother should be able to be a strong and vital contributor to her son's future. The court does acknowledge, after a quick reading of the 2015 agreement, that this decision changes many aspects of it. The court would direct the parties to provide a new agreement consistent with the decision by this court while preserving the mother's joint custodial rights.
Given all these factors and recognizing the impact that relocation will have on the child and his parents, this court directs the following liberal visitation schedule. Matter of McMiller v. Frank , 117 N.Y.S.3d 915 (4th Dept. 2020) (a child['s] relationship with the absent parent could be preserved through a liberal parenting access schedule including, but not limited to, frequent communication and extended summer and holiday visits). The court notes that there was limited evidence of any post-relocation visitation schedule or parental preferences expressed during the trial, but the court, seeking to address parental concerns expressed during the trial and to complete the Tropea analysis nonetheless directs:
(A) the child's residence in Delaware shall commence August 15, 2020;
(B) until then, the child shall have visitation with his father only on an already scheduled vacation - if any - and if no such vacation is scheduled, then only for the week of July 27 - August 2;
(C) Labor Day weekend this year shall be spent with his mother;
(D) thereafter, the child shall have one weekend a month with his mother and that weekend shall be a long weekend, when available — Colombus Day weekend in October, Veterans Day weekend in November, Thanksgiving weekend (this year); one week at Christmas, Martin Luther King's Holiday in January; one of the two spring breaks each year; Mother's Day weekend, and July 4th, 2021;
(E) thereafter, the parents shall rotate the major holidays each year: Easter, Memorial Day, July 4, Labor Day, Colombus Day, Thanksgiving and the day of Christmas
(E) the mother shall have two two-week periods of visitation each summer and shall have such other visitation as the parents may agree;
(F) the parents shall make every effort to have the child attend family occasions including special birthdays of relatives, weddings, funerals or other special occasions;
(G) the parents shall share the cost of transportation or driving for the child, but the father shall on an annual basis pay the mother $100 per month to cover transportation and other costs;
(H) the mother shall be permitted daily telephone calls with the child and may use any technology to confer with child and the father shall not interfere with such communications;
(I) the mother shall be listed as primary respondent on any academic, educational, healthcare or other maters involving the child and shall be given advance notice of any appointments for the child with any other providers and shall have access to any reports or analysis as a consequence of such visits;
(J) any other visitation on which the parents can mutually agree.
In directing these changes, the court is seeking to give the mother the "liberal access" necessary under the Tropea doctrine. The court would readily defer to the parties and their counsel in devising an alternate plan that would better accommodate their interests and the child's. The court's deference to counsel and the parents is heightened because the trial proof did not sketch out the details of an appropriate post-relocation visitation plan.
For these reasons, the father's application to relocate the child to Delaware is granted. The mother's cross-motion is denied. Neither party is awarded costs or attorneys fees as the court concludes that the parents here proceeded in good faith with the utmost interest of their son at heart. This Court, having grappled with the complex issues in this relocation matter — a loving mother, who reared a child for a dozen years and now sees him depart to a distant home while a loving father seeks to bring the same child into his new home — now understands how some knots can — and must — be unraveled but the tender sinews of loving parents' hearts defy easy solutions.
SUBMIT ORDER ON NOTICE. 22 NYCRR 202.48