Opinion
No. V–06275–10/12D.
2013-02-14
In the Matter of NICOLE H., Petitioner, v. JACOB N., Respondent.
Derek Thompson, Esq., Asst. Conflict Defender, for Nicole H. Jonothan Altman, Esq., Asst. Conflict Defender, for Jacob N.
Derek Thompson, Esq., Asst. Conflict Defender, for Nicole H. Jonothan Altman, Esq., Asst. Conflict Defender, for Jacob N.
Katie Woodruff, Esq., attorney for the Children.
PATRICIA E. GALLAHER, J.
This case presents in an unusual manner, in that the parents agreed that the initial order could be modified, allowing the mother /petitioner Nicole H. (hereinafter “mother”) and child to relocate, but the father/respondent Jacob N. (hereinafter “father”) requested that the mother thereafter provide all transportation, a responsibility which was entirely his under the prior order. The mother disagreed, expressing that the father should be responsible for transportation as her intended move to the Town of Ontario would be only a few miles different from where the child currently resides, and their efforts to settle the matter with her providing the transportation but him paying for the gas had failed because the father simply did not pay for gas as ordered on a temporary basis.
This matter was set down for a trial or default on July 2, 2012, at 3 PM. At 1:18 PM the father called, asking for an adjournment on the basis that he was moving that day. That adjournment was not granted upon his call. The mother appeared ready for trial or default. The father did not appear in court, but was reached by phone at that time, and settlement efforts were again attempted without success.
By this date the father had not appeared on the prior two court dates so his violation and modification petitions had been dismissed. He had been on the phone for the next earlier court date and had last appeared personally in court on March 8, 2012. Ironically, in a case where the father had argued throughout the proceedings that the burden of providing transportation should fall on the mother as she was intending to move a few miles further away from him, when the father called in to say he could not be present for the trial because he was moving, he did not provide any new address for himself. Therefore, this court was not provided with an address at which he would be living after the scheduled hearing date—a factor which is quite arguably relevant when parties are arguing over who is to pay for gasoline based on what the mother thought would be a ten minute longer trip for drop offs and pick ups for visitation if she were to move and he stayed where he was.
Father had sought a violation based on his allegations that three visits had not happened as scheduled and a modification for “joint physical custody”.
The father lives only a half-hour walk from the Hall of Justice and could also have taken a bus to court for these various appearances.
The court proceeded by default against the father since his failure to appear was unexcused (and habitual) and it is highly unlikely that he had only learned on the scheduled day for the trial that he was required to move that very day. Thus, his request for an adjournment was unreasonable. What was clear throughout the proceedings was that the father had no opposition to the mother moving out of the county—the real issue was that the father wanted the mother to do and pay for all the transportation for his visits, and she wanted the father to continue to provide transportation or at the very least wanted him to share the cost of transportation for his visitation. The father had no license at the time of these negotiations and mother's petition.
THE HISTORY OF THE CASE
The parties commenced the initial proceeding in 2010, resulting in an August 3, 2010 agreement on the record to a consent order of custody awarding joint custody to both parents, primary physical residence of the child Hailee (DOB 2/25/10)with the mother, and periods of visitation with the father, with him to provide all transportation, among other provisions. No written order was submitted for signature for an extended period of time, and this Court signed and entered the written order on January 20, 2012. This January 20, 2012 order is the one sought to be modified by the mother in this proceeding.
After the father filed his petitions for violation and modification, on February 9, 2012 the mother filed a petition requesting modification of the prior order to permit her to relocate into a contiguous county.
During the course of the proceedings, a Thursday visit was substituted for the court-ordered Tuesday visit based on the agreement of the parties, and the Court had temporarily directed that the father provide $20.00 each week in gas money or on a gas card in advance of periods of visitation, as he alleged he had no license or vehicle at his disposal and the mother was doing all the transporting for visitation purposes from East Rochester to and from the city where the father lived.
At the default hearing, the Court heard the sworn testimony of the mother. The attorneys for the child and the mother argued that the mother and child should be allowed to relocate, that the mother had established a change of circumstances and that it is in the child's best interest to grant the relief requested. Based on all the evidence, and for the reasons set forth below, this court agrees and grants the relief requested in the mother's pending petition.
CHANGE OF CIRCUMSTANCES AND RELOCATION
It is well settled that a parent seeking modification of an existing custody order bears the burden of proving that there has been a “sufficient change in circumstances making modification necessary for the continued best interests of [the] child[ren]” (Matter of Leo v. Leo, 39 A.D.3d 899, 900–901, 832 N.Y.S.2d 691[3d Dept 2007]; Matter of Watson v. Smith, 52 A.D.3d 615, 861 N.Y.S.2d 354 [2d Dept 2008]; Matter of Conforti v. Conforti, 46 A.D.3d 877, 848 N.Y.S.2d 359 [2d Dept 2007] ). In determining the best interests of the child, the court must consider the totality of the circumstances, including maintaining stability for the child, the child's wishes, the home environment with each parent, each parent's past performance and relative fitness, each parent's ability to guide and provide for the child's overall well-being, each parent's ability to cooperate with and comply with existing court directives, and the willingness of each to foster a positive relationship between the child and the other parent ( see Matter of Eck v. Eck, 33 A.D.3d 1082, 1083, 822 N.Y.S.2d 651 [3d Dept 2006]; Matter of Smith v. Miller, 4 A.D.3d 697, 698, 772, 772 N.Y.S.2d 742 [3d Dept 2004] ). As in the instant case, an order issued upon the consent and stipulation of the parties rather than after a full evidentiary hearing carries some weight for the Court to consider with the other balancing factors, though is not solely dispositive and is less persuasive than an order made by the court after trial. ( See Eschbach v. Eschbach, 56 N.Y.2d 167, 172 [1982] ).
Thus, the mother, in presenting all her proof at trial in support of her modification request, would normally need to establish a sufficient change of circumstances, which would allow the court to reach the best interests issue with respect to the child and modify the prior order to allow relocation. ( See Stephen R.H v. Lisa A.H., 41 A.D.3d 1310, 839 N.Y.S.2d 363[4th Dept 2007]; see also Tropea v. Tropea, 87 N.Y.2d 741 [1996] and Rauch v. Keller, 77 A.D.3d 1409, 907 N.Y.S.2d 900 [4th Dept 2010] ) Here, however, the Court does not need to do so, as the father repeatedly agreed with the mother and child relocating, including over the phone on the day of the default hearing. Furthermore, the intended move to the Town of Ontario in Wayne County would be a minor one—indeed a move which result in her being less far from the father than if she had moved to the furthest point possible within the County of Monroe. The only real issue for determination is the transportation issue, and the costs associated therewith.
As argued by the mother's attorney, the allocation of the costs of transportation are case specific, and should be treated individually. (See Weiss v. Weiss, 52 N.Y.2d 170 [1981];Cervana v. Bressler, 50 A.D.3d 837, 855 N.Y.S.2d 658 [2d Dept, 2008], Moore v. Schill, 44 A.D.3d 1123, 844 N.Y.S.2d 153 [3d Dept, 2007], and Reis v. Judson, 263 A.D.2d 136, 700 N.Y.S.2d 609 [4th Dept, 2000] ). In Weiss, the Court of Appeals observed that it is within the discretion of the court to ensure that the child should not be made to suffer because of choices the parents make. The cases cited above also agree specifically that distance should not be a barrier to continuing an ongoing relationship between a parent and child. A helpful case is matter of Jasmine L v. Ely G (95 A.D.3d 698, 945 N.Y.S.2d 57 [1st Dept.2012] ), in which the court reversed the court below and ruled, based on “economic realities” of the case that the visiting parent/mother should not be made to bear the full burden for transportation as placed on her by the court below. Instead of forcing a mother with a second child and no vehicle and living in Manhattan to get the child to and from all visits by picking the child up and dropping the child off at the father's home in the Bronx, the court on the appeal ordered the parties to meet at a subway station a short drive from the father's home. The father had a car, and the parties had been meeting there without incident for several months prior to the fact-finding hearing.
In this case, the mother requests a de minimis relocation which by itself would not normally reduce visitation significantly or defeat the purpose of a no relocation-from-a-certain-county clause, and therefore does not require the usual application of the Tropea factors (Tropea v. Tropea, 87 N.Y.2d 727 [1996] ). Furthermore, the mother had agreed to assist with transporting the child after the father lost his license, so that the child's time with the father would not be adversely affected. The maternal grandmother also assisted. However, this arrangement was not without incident as the father failed to contribute to the reasonable costs of gas as directed by the court.
At trial, the mother indicated that if the father were able to provide gas money in advance of periods of visitation, she would help out, but that the primary responsibility for transportation should remain with the father. This Court agrees, and will only modify the order to the extent that the mother shall provide at her own expense round trip transportation for half of the weekend visits, i.e., every other weekend visit, and only for so long as the father has no license. All other transportation for the father's visitation shall be provided by the father. He can provide transportation by paying the mother enough for transportation costs that she agrees to do the transporting, by relying on friends, or by any other means he devises. This arrangement will at least provide some assurance that the child sees the father without encouraging the father to do nothing and be uncooperative.
Therefore, based on the totality of the circumstances, the agreement by the father as to the underlying re-location issue, and in consideration of this child's best interests, this Court affirms that the mother may relocate with the child to the County of Wayne as set forth below, and modifies the prior Order of Custody and Visitation with respect to the transportation provision. This is in no way intended to minimize the access the father should have with his daughter. Finally, the court notes that the parties apparently agreed some time ago that the father's Tuesday visitation should be replaced by a Thursday visit, but the parties did not fully develop this allegedly agreed change and thus this decision and order does not address that point. The parties are free to settle that issue on their own.
NOW THEREFORE, it is
ADJUDGED that the mother has proven a sufficient basis for permitting her to relocate to the Town of Ontario in Wayne County, a de minimus relocation which by itself would not normally reduce visitation significantly, and therefore does not require the usual application of the Tropea factors, and indeed, the father has agreed to that relocation; and it is further
ADJUDGED that the father's request for the mother to be responsible for all transportation for the father's periods of visitation, has not been sustained by sufficient proof, but that the realities of the situation and overall fairness dictate that it is in the best interests of the child to have the mother provide some transportation so long as the father has no driver's license; and it is further
ORDERED that the mother and child may relocate to the Town of Ontario, County of Wayne, or some lesser distance from Monroe County within the County of Wayne; and it is further
ORDERED, that the father shall be responsible for transportation for visitation, except that the mother shall be responsible for round-trip transportation for one-half of his weekend visits, i.e., every other weekend visit, until such time as the father obtains a driver's license; and it is further
ORDERED, that except as modified herein, the prior order signed January 12, 2012, shall otherwise remain in effect.