18 Misc. 3d 650 | N.Y.C. Fam. Ct. | 2007
OPINION OF THE COURT
Before the court are cross petitions for custody of Luis M., the first filed by the father on March 1, 2007 and the second filed by the mother on March 13, 2007. Trial of the issues began on October 24, 2007 and concluded on October 25, 2007. Each of the parties testified in their own behalf and Victor M. called his mother, Antonia R., as a witness. In addition the mother introduced into evidence 11 photographs consisting of pictures of her mother’s home in Florida, where she would reside for the immediate future, and pictures of various family members with the child taken at the second birthday party they had for him this summer.
Because the child was 20 months old at the time the petitions were filed and neither party expressed concerns regarding the other’s mental health or fitness,
Just as the Second Department has recognized that the appointment of a law guardian is not required in all cases, so has it recognized that forensic evaluations may not be necessary in all custody and visitation litigation (Guevara v Guevara, 132 AD2d 596 [2d Dept 1987]). The decision of “whether to direct a social or psychological evaluation in custody and visitation matters is within the sound discretion of the court” (Matter of Sassower-Berlin v Berlin, 31 AD3d 771, 772 [2d Dept 2006]; Matter of Salamone-Finchum v McDevitt, 28 AD3d 670 [2d Dept 2006]). The Family Court is not required sua sponte to order psychological assessments (Matter of Thompson v Yu-Thompson, 41 AD3d 487 [2d Dept 2007]; Matter of Panetta v Ruddy, 18 AD3d 662 [2d Dept 2005]; Lee v Halayko, 187 AD2d at 1002).
Notwithstanding the parties’ waiver, the court independently assessed the information available pretrial to determine whether a law guardian should be appointed sua sponte. The court’s analysis suggested that a law guardian would not be critical in this case because the child is preverbal, does not have special medical or health-related needs, is not developmentally delayed and in need of therapeutic interventions or special education services, the parties have been cooperating in jointly raising the child despite the demise of their relationship and no issues pertaining to inadequate supervision and guardianship, impaired judgment, mental health or domestic violence were raised by either party. The court also independently assessed the informa
At the end of the trial, counsel delivered oral summations on behalf of their clients and submitted case law in support of each party’s position. Decision was reserved in order to give the court an opportunity to review the testimonial and documentary evidence in the record and to consider the points and authorities cited by counsel.
Findings of Fact
The court, having had the unique opportunity to hear the testimony of the witnesses, observe their demeanor, and assess their veracity, now makes the following findings of fact based on the material, relevant, credible and competent evidence in the record.
The mother was born and raised in Tampa, Florida, where she lived with her mother and father until she was 17 or 18 when her parents divorced. She continued to live with her father until she was 22 and got her own apartment. The father was born in Puerto Rico and raised in the Bronx. He has been living in New York for the past 10 years. At present they are each in their mid-twenties. The parties met on line in 2002 and corresponded for a short while until they exchanged phone numbers and began talking on the phone a few times a week. This continued for a few months until they actually met in person when the mother came with a friend to New York in May 2002 on a four- or five-day vacation. According to the father they “met up one night to hang out, have a couple of drinks” after which “she went her way and I went mine.” After the
In October 2004 the mother learned she was pregnant. That same month, the father took his two-week vacation and went to Florida to be with the mother. He brought his daughter Victoria with him. They discussed the possibility of him moving to Florida so, while he was there, he looked for a job in maintenance by posting his resume on a Web site and checking the local newspapers. The father got a “couple of calls back” but when he went to be interviewed with the Hillsboro County schools for a job as a locksmith, he was told he was “too overqualified” when they saw he was making $17 an hour at his job in New York
At the end of October 2004 the mother was terminated from her job as a general claims clerk at MetLife in Florida for taking more time off than her allotted annual leave would cover. Although the father admitted they had “plans to move out there,” after she lost her job, he told her they would live better in New York since he “had a stable job and stable home, [his] mother would provide childcare, the baby is young and can’t talk and [he would not] trust anyone but family to care for [their] son.” The mother “never wanted to move here to begin with” but agreed to do so because she “felt that it would be only temporary” since they would “save money for a house and move back to Florida.” The mother admitted that the father never gave her an exact time frame but in her mind it would be “within a few years.”
The mother began working in October 2005 two months after the birth of their child. She works five days a week at Midtown Glass where she earns $20,800 a year working “half on the books and half off.” She got the job through the father’s brother. She has a high school diploma and sought work in New York by posting her resume on Monster.com. She hoped to be able “to move up and make more money” but the one job she was offered did not pay much money. Because of her work at MetLife in Florida, she made applications to insurance companies in New York. She had an interview at New York Life but it was for selling insurance where she “would not get paid until she put herself through their training program.” She also has past experience in banking and applied to several banks, including Commerce Bank and Chase-JP Morgan, but did not get employment. Professing to being interested in becoming a technician in the health field “doing sonograms and x-rays” or doing paralegal work, the mother admitted discussing this with the father and he told her “if that’s what you want to do, then do it.” However, she did not explore any of these training programs in New York City because she “had [her] daughter here and [didn’t] want to leave total responsibility for her on his mother or him.”
Once the mother began to work the paternal grandmother, Antonia R., took care of the children, as she had done for her
The mother has been in New York since 2005. Other than an older half sister who lives in Massachusetts, the mother has no family here. The mother and her sister are not close as they did not grow up together and they met for the first time when the mother was 17. The mother does not have any friends in New York. Besides Victor M. and Antonia R., she has no one here to turn to for emotional support. The father acknowledged the mother’s friends were in Florida but said for reasons he did not know, she didn’t stay in contact with them. After the mother came to New York and became homesick, the father portrayed her as sad and withdrawn. In describing the course of their relationship, the mother said it was very loving at first but there were times when she felt homesick. The stress of being pregnant and later trying to find a job caused the mother to become “somewhat withdrawn and over time, the relationship faded.”
The father offered to introduce the mother to people and his family offered to take her out but he said she did not want to
In contrast to the lonely and isolated life she leads in New York, all of the mother’s relatives reside in Florida — each of her parents and stepfather, two uncles, an aunt, a grandmother, first cousins and their children. According to both parties, the mother speaks to members of her family on the telephone everyday, particularly her mother, stepfather and father. Although the mother professes to have a close family, none of her relatives have ever come to see her in New York. Only once did one of her best friends come to see her in New York. When the father was visiting the mother in Florida in October 2004 she never took him to meet her family. According to him, “the only time we visited her parent’s home was on [the], day we decided to leave.”
Because the mother is homesick, she wants to leave New York with her child and return to Florida “to be with my family.” She would live for free with her mother and stepfather in a three-bedroom, two-bath home located between 30 and 40 miles from Tampa in a town called Zephyr Hills. The home is located on “one acre of land that is fenced in” and has a big backyard,
In addition to being reunited with her family, the mother’s other reasons for wanting to move to Florida are to have a better environment to raise the child in, to have the support of her family, to get a better paying job and advancement in a company as opposed to the job she has now, to be able to go at night to career advancement programs and to be able to afford a three-bedroom two-bath apartment. She claimed to have found such an apartment for a monthly rent of $750 to $850 not including utilities. In addition, she would have expenses of telephone, cable, food and gasoline. In contrast to this figure, the apartment she and the father live in presently costs $1,165 per month, which he and she presently divide. Because the mother does not “know where anything is in Brooklyn” and in Florida “she would have [her] own vehicle,” the mother believes there are more recreational opportunities for her and her children and she “would be able to take them more places” in Florida. When asked if she planned to look for a job in Florida, the mother replied that she “had job offers already” but on cross-examination she admitted that while she “got call backs for wireless communications and insurance companies” for full-time jobs in customer service paying between $12 and $15 an hour with medical benefits, she actually had only offers of interviews which she was not able to go to while residing in New York.
The mother testified that her wish to return to Florida was “absolutely not” motivated by a desire to deprive the father of meaningful access to the child. She said that when she and the father broke up in February, she “just felt that the only place I could go is back home.” She denied starting up a new relationship with someone in Florida. She acknowledged that if she was allowed to have the child and move to Florida it would make it difficult for the father to have access. She expressed her willingness to permit the father to have “significant visitation” with the child by giving him “a large chunk of time to spend with him . . . including holidays and summers.” She said she would be “very flexible” and allow him to “spend as much time as he can, six to eight weeks during the summer.” She volunteered to
The mother acknowledged that it would be an “abrupt change” for the child to be away from the only home and family
The father’s family consists of two brothers and a sister. One brother lives two blocks away from him with his wife, two-year-old son, and Antonia R. His other brother, with whom he also works, lives 10 to 15 blocks away with his wife, and his six- and seven-year-old daughters. His sister lives in New Jersey whom he sees mostly on holidays and birthdays. When asked how he felt about his siblings, the father said he has “good relationships with them and he would be there anytime for them.” The
The father explained that “once she told me she wanted to leave and that we were splitting up,” he came to court to file for custody and to stop the mother’s relocation because “I love my son, I had him since he was born, I’ve always been there for him . . . and I want to remain in his life.” The father explained that it would not be fair for the mother to move out of state because he is used to having the child with him all year round and he would not be able to spend as much time with the child as he would if she remained here. When asked what he thought about the mother’s visitation proposal if she was permitted to relocate, the father said “right now it sounds like it is fair but when my son starts school and[the] whole plan changes ... I would have to try to have as much visitation as I could.” He admitted that any time parents split up, someone loses out on time with the children and that would be the case even if the mother stayed here. The father said that if the mother stayed here, he would want to see the child “every day if I can and spend a couple of hours with him.” While saying he did not agree with the mother’s proposed visitation plan if she remained in New York, he added, “me and her have a close relationship and we can work something out.”
The court, having reviewed the applicable judicial precedents pertaining to the custody/visitation issues at bar and having considered the arguments, points and authorities cited by counsel in their summations, now reaches the following conclusions of law based upon the material, relevant and credible facts established at the hearing.
This fact pattern is one of the most unusual this court has seen in 17 years on the bench. To begin with, there is almost no discrepancy between the parties’ factual recitation of their history together and their present circumstances. Even though they did not marry, both parties admit they decided to have a child together. After the child was born, the parties agree that they have been equal partners in caring for and raising him. Neither party has anything bad to say about the other, nor does one party harbor any resentments toward the other. Theirs is not a high-conflict dissolution riddled with daily dramas emerging from perceived injustices or unseemly conduct. Each considers the other to be an excellent parent, fully engaged with the child and fulfilling the duties of childrearing and accepting the responsibilities of parenthood. Neither party has made any allegation of physical or verbal abuse against the other party. Despite having lost the love they once had, the parties continue to reside together as a family unit; consequently the primary custodian has not been determined de facto or by court order. The mother, feeling isolated in New York and homesick for her family in Florida, desires to return and seeks custody so she may take the child with her. The father, who objects to losing his daily involvement and interaction with the child, opposes the mother’s relocation and seeks custody as an alternative. While each party is quite young, they have approached their situation in a mature and responsible way by coming to court and seeking a judicial determination of the issues they are unable to resolve for themselves.
Under New York law, priority in a custody dispute should be given to the first parent who was awarded custody, either by voluntary agreement or court order, unless extraordinary circumstances require otherwise (Friederwitzer v Friederwitzer, 55 NY2d 89 [1982]; Matter of Ganzenmuller v Rivera, 40 AD3d 756 [2d Dept 2007]) because stability and continuity are vital to normal child development (Matter of Nehra v Uhlar, 43 NY2d 242 [1977]). Inasmuch as neither party has lost his or her status as a custodial parent, neither parent can assert a priority under
A. Best Interests
It is the public policy of this State, as set forth in section 70 (a) of the Domestic Relations Law, that neither parent has a
“the quality of the parents’ respective home environments, the length of time of the existing custody arrangement, the parents’ past performance and relative fitness, their ability to guide and provide for the child’s intellectual and emotional development, the needs of the child, the child’s wishes, as well as any possible manipulation of those wishes, and the need for stability in the child’s life” (Matter of Grayson v Fenton, 13 AD3d 914, 915 [3d Dept 2004]; Matter of Nehra v Uhlar, 43 NY2d 242 [1977]).
Of relevance are “the financial status and ability of each parent to provide for the child” (Matter of Canazon v Canazon, 215 AD2d 652, 653 [2d Dept 1995]) and “ ‘the effect that an award of custody to one parent might have on the child’s relationship with the other parent’ ” (Bains v Bains, 308 AD2d 557, 558 [2d Dept 2003]). Because these factors interact with each other to create “a complex picture of each parent’s living situation and the quality of care that they will provide, no single factor is dis-positive” (Synakowski v Synakowski, 191 AD2d 836, 836 [3d Dept 1993]). By statutory amendment to Domestic Relations Law § 240 (1) (a) courts must also consider the “effect of . . . domestic violence upon the best interests of the child” if a party makes a sworn allegation that “the other party has committed an act of domestic violence against the party making the allegation or a family or household member of either party, . . . and such allegations are proven by a preponderance of the evidence.”
Three of the foregoing factors (the present custodial arrangement, the child’s wishes and the existence of domestic violence) are not at issue in this determination. The evidence shows that in the remaining comparative categories (the respective home environments, the needs of the child, each parent’s past performance and relative fitness, each parent’s ability to guide and provide for the child’s intellectual and emotional development,
The factor which weighs most heavily in this determination is the effect that an award of custody to the mother with permission to relocate might have on the father/son relationship and all of the considerations which enter into this analysis, specifically the child’s chronological age, developmental level and psychological needs, the importance of stability and the impact of the parties’ impending separation on the child. What this child’s reaction to the parents’ breakup will be, how vulnerable the child will feel, how the child’s sense of security will be affected, whether the child will feel conflicting loyalties, whether the child will experience a loss of trust or perceive he has been abandoned or rejected by the absent parent are all unknowns since the parties have not yet separated.
This child is just a little over two years old. Psychologically and developmentally, this is a critical time in the growth of a child. Luis has just entered into the “toddler” stage of development (18-36 months) which brings with it a new set of developmental tasks. While the major developmental task in the first year of life is to acquire a sense of trust and security, the primary developmental task in the second year of life is to achieve independence. Toddlers embark upon the transition from dependency to autonomy as a result of their new found mobility, as a result of developing fine motor skills which allow the child to pick up, hold and manipulate objects, as a result of becoming toilet trained, gaining the ability to sleep through the night and beginning parallel play with other children. The development of psychological autonomy appears as the toddler’s speech and language skills increase. As a toddler’s social sphere expands to include other people beyond the nuclear family (babysitters, playmates, parents of peers and teachers) and environments beyond the home (day-care centers and nursery schools), rudimentary social skills begin to develop.
Mastery of each of these developmental milestones is essential for the toddler in the process of separating emotionally from the parents and acquiring self-esteem and confidence. Judges routinely observe how changes in the family structure, which occur with divorce or separation, can significantly impact upon children’s sense of safety and security, their self-image and feelings of worth, their intellectual functioning and their interpersonal relationships. Diminution of any one of these domains can alter the developmental course for children in a major way.
B. Relocation
Each case involving a request to relocate must be evaluated on its own merits (Matter of Wisloh-Silverman v Dono, 39 AD3d 555 [2d Dept 2007]). The following evidence in this case is relevant to the Tropea factors. The mother’s reason for wanting to relocate is because she is homesick. This request to relocate does not involve economic necessity or betterment, health-related concerns, the demands of a second marriage, a new romantic interest or the mother’s need to have a “fresh start.” The father’s reason for opposing the move is that he will lose any possibility of maintaining his relationship with the child through regular and frequent contact with his son. Since the child was born, the father has lived with the child and enjoyed being with him every single day. He has been a full participant in caring for and raising this child when he is not at work. Since the mother became employed when the child was two months old, neither parent can claim to be the “primary caretaker” of the child. That role has devolved to the paternal grandmother since she has spent nearly 12 hours a day with the child five days a week practically all of his life.
Turning to the question of what benefits the child may enjoy or the harm that may ensue if the relocation is or is not permitted the court finds that the mother will be, at least initially, completely dependent upon her family for support and amenities such as a car and childcare. She has no definite plan of whether to live with her mother and stepfather south of Tampa or with her father in Tampa. She speaks of getting her own apartment eventually. She does not have a job lined up and does not even know what type of work she wishes to pursue. She speaks of a desire to attend school but evinced a serious lack of motivation while in New York to get a better job than she has, or to go to school despite the opportunity both here in New York and in Florida when she was younger. With all this uncertainty, it is difficult to imagine how the child’s life would be better in Florida than in New York.
The child’s father is gainfully employed and has been so for years. He has a union job with full benefits and promotional opportunities which he has been given. The court has heard testimony about the father’s efforts to obtain a job in Florida and although his attempts were not aggressive or extensive, opting for a parallel move by the father, under these circumstances, would be undesirable given the discrepancy in pay, benefits, loss of seniority and separation from his close-knit family. It is clear, however, that whether the child stays in New York with the father and/or mother, or goes to Florida with the
In those cases where courts have permitted relocation, one of the central issues has been whether the noncustodial parent will be deprived of “regular and meaningful contact” with the child (Tropea at 738), and whether it would be possible to devise “a visitation schedule that will enable the noncustodial parent to maintain a meaningful parent-child relationship” (Tropea at 740).
What these cases seem to suggest is that relocation will not be denied with older children who have had only a visiting relationship with their noncustodial parent if there are other factors which show the move would be in the child’s best interests (Matter of Fegadel v Anderson, 40 AD3d. 1091, 1093 [2d Dept 2007]).
Given the mother’s unemployment and the father’s modest income, the cost to provide for the extensive travel, which would be required to maintain a two-year-old child’s attachment, bonding and developing a relationship with the noncustodial parent would be prohibitive and far beyond the financial resources of these parents (Ritz v Ritz, 36 AD3d 437 [1st Dept 2007]; Schreurs v Johnson, 27 AD3d 654 [2d Dept 2006]).
C. Joint Custody
In Braiman v Braiman (44 NY2d 584, 589-590 [1978]), the Court of Appeals held that “joint custody is encouraged primarily as a voluntary alternative for relatively stable, amicable parents behaving in mature civilized fashion.” It is not a viable solution for two parents who cannot put aside deep-seated resentments and communicate or cooperate with one another (Matter of Smith v Miller, 4 AD3d 697 [3d Dept 2004]), or when there is “substantial record evidence of the parties’ distrust of one another [which leads to the] inability to cooperate and act in a mature civilized fashion” (Matter of Morehouse v Morehouse, 251 AD2d 710, 710 [3d Dept 1998] [internal quotation marks omitted]), or when parents become hostile and antagonistic towards each other and are unable to put aside their differences for the benefit of the child (Matter of McCoy v McCoy, 43 AD3d 469 [2d Dept 2007]).
Although the father is willing to consent to the mother having full custody, on this record, there is no evidence to show that an award of joint custody would be contraindicated. The evidence is replete with examples of these parents working together productively and industriously to assure their son is well cared for, happy and nurtured by each of them. Both parties have shown that they are capable of placing the well-being of their son above their own needs (Fiorelli v Fiorelli, 34 AD3d 1216 [4th Dept 2006]); neither one harbors any deep-seated resentments and they both are able to communicate and cooperate with one another; neither one seems inclined to deny or interfere with the other parent’s visitation rights (Matter of Smith v Miller, 4 AD3d 697 [3d Dept 2004]); neither has exercised poor judgment (Matter of Roe v Roe, 33 AD 3d 1152 [3d Dept 2006]); neither is distrustful of the other to the point of being unable to “act in a mature civilized fashion” (Matter of Morehouse v Morehouse, 251 AD2d 710, 710 [3d Dept 1998]); no evidence of hostility or antagonism towards each other has been demonstrated, nor has it been shown that they are unable to
Decision
Having made a thorough examination and inquiry into the facts and circumstances of the case and into the surroundings, conditions and capacities of the persons involved in this proceeding, and having weighed the testimony, character, temperament and sincerity of the parties involved, and having given serious consideration to the various factors at issue in this custody/ relocation request, based on a totality of the circumstances and the best interests of the child, the court finds that the father proved by a preponderance of the evidence that relocation should be denied. Inasmuch as the evidence establishes that these parties have the type of working relationship which would make joint decision-making practicable, the court finds there is a sound and substantial basis in the record to grant joint custody of the child to both parties, with physical residence to the mother and regular and frequent contact between the father and the child. In addition to day and overnight visitation, the father may speak to the child by telephone at reasonable times with reasonable frequency.
Based on the child’s chronological age and developmental stage, the parties should establish a visitation schedule for the father that will not create separations of more than two or three days. As the child has been residing in the father’s home, overnight visitation should be included in the schedule the parties create. The parties should develop a plan in which they share or alternate holidays and have the child during their respective vacations. Each parent shall provide the other with a current address and telephone number and will notify each other within 72 hours of any changes to this information. Each parent will immediately notify the other regarding any emergency involving the child.
Except for periods of vacation during the summer, spring or winter school break and day trips during weekend visitation, neither party may remove the child from the jurisdiction of the
Neither party with custody of the child may relocate beyond a 25-mile radius of where they presently reside without the written consent of the other party.
. The Second Department has held that forensic evaluations are necessary when a parent’s mental and physical health is an issue (Stern v Stern, 225 AD2d 540 [2d Dept 1996]) or when there are “serious issues of fitness” (Matter of Vernon Mc. v Brenda N., 196 AD2d 823, 825 [2d Dept 1993]).
. Family Court Act § 249 governs the appointment of law guardians in proceedings held pursuant to the Family Court Act. Family Court Act § 249 (a) requires the appointment of law guardians for children in child protective proceedings, termination of parental rights and juvenile delinquency proceedings. Pursuant to Family Court Act § 249 (a),
“In any other proceeding in which the court has jurisdiction, the court may appoint a law guardian to represent the child, when, in the opinion of the family court judge, such representation will serve the purposes of this act . . . The family court on its own motion may make such appointment” (emphasis added).
The purpose of the law guardian is to “act as champion of the child’s best interest, as advocate for the child’s preferences, as investigator seeking the truth on controverted issues, or . . . recommend alternatives for the court’s consideration” (Koppenhoefer v Koppenhoefer, 159 AD2d 113, 117 [2d Dept 1990]).
. Family Court Act § 251 (a) authorizes the court to order “any person within its jurisdiction . . . to be examined by a physician, psychiatrist or psychologist appointed or designed for that purpose by the court when such an examination will serve the purposes of this act.”
. In New York, the father is employed at Mutual Redevelopment in Manhattan as a handyman and head locksmith. He started at that job eight years ago as a porter and was upgraded after he went to school for and received training as a locksmith. He has received additional training to be a backup for the First Response Team in his neighborhood and has taken a CPR course through FEMA. He is a union member, earns three weeks’ vacation a year, receives medical benefits and has the child on his medical plan. He works 40 hours a week and earns $20 an hour which is about $41,600 a year.
. This child was born in New York City. His first introduction to any members of the mother’s extended family occurred during the summer of 2007 when the court allowed her to take the child to Florida for a short visit. During this visit the family had a celebration for the child’s second birthday, where many of the photographs introduced into evidence were taken.
. At the end of the mother’s visit to Florida in July, she left her daughter Ashley in the care of her mother so she could start the school year there. She testified that she “felt it was better for her to stay in Florida . . . environmentwise ... to keep her out of arguments me and the father were involved in.”
. When the Court of Appeals issued its decision in Matter of Tropea v Tropea (87 NY2d 727, 738, 732 [1996]) rejecting the three-step analysis that had existed under Weiss v Weiss (52 NY2d 170 [1981]) and opting for a “simultaneous weighing and comparative analysis of all of the relevant facts and circumstances,” the “scope and nature of the inquiry” that courts should make in relocation cases was wholly transformed. The list of factors to be considered is as individual and unique as the cases themselves. Under Tropea (87 NY2d at 738), “no single factor should be treated as dispositive or given such disproportionate weight as to predetermine the outcome.” The Court of Appeals concluded that “[i]n the end, it is for the court to determine, based on all of the proof, whether it has been established by a preponderance of the evidence that a proposed relocation would serve the child’s best interests” (Tropea, 87 NY2d at 741).
. While appreciating “both the need of the child and the right of the noncustodial parent to have regular and meaningful contact,” the central concern focused on by the Court of Appeals is the “impact of the move on the relationship between the child and the noncustodial parent” (Tropea, 87 NY2d at 738-739) and not just its impact on a parent’s visitation since any relocation necessarily involves a disruption to and diminution of the noncustodial parent’s access to the child. Nor is it a balancing of the interests of the respective parents with the interests of the child since relocation is principally motivated by one parent’s interests and then reasons are secondarily constructed to demonstrate how the move would benefit the child. Ancillary to this,
“the courts should be free to consider and give appropriate weight to all of the factors that may be relevant to the determination. These factors include, but are certainly not limited to 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 visitation arrangements” (Tropea, 87 NY2d at 740-741).
. The two cases that were consolidated in Tropea involved postjudgment modifications where a custodial parent had already been selected. The children in Tropea were seven and four years old and the in-state relocation involved a distance of 21h hours by car. The child in Browner v Kenard was four years old and the out-of-state relocation involved a comparable distance of 130 miles. In both cases the mothers had custody and the fathers had an established visitation schedule. Relocation in both cases was permitted in the best interests of the children.
. Heisler (at 321) involved a relocation by the mother “to return to her roots in Baltimore, approximately three hours away, where there is a family environment offering greater emotional and financial support for raising the child.” The mother demonstrated a change in circumstances based on the father’s noncompliance with “crucial aspects of the stipulation” (at 322) “regarding permanent custody and parenting time” (at 321). In Cynthia L.C. (at 1086), the appellate court approved the proposed move to Florida by the joint-custodians (mother and maternal grandmother) because of economic necessity and a showing that the father had “no accustomed close involvement in the child[ ]’s everyday life” (interned quotation marks omitted).
. In Wisloh-Silverman, the mother had sole custody of the 12-year-old child almost all of the child’s life and the father had a visiting relationship with alternate weekends, IV2 hours every Tuesday, holidays and vacations
. In Fegadel (at 1093), the mother’s relocation to Florida was permitted even though “both parties were loving parents” because “the mother has been Katrina’s primary caretaker since the parties’ divorce and has established a primary emotional attachment” to the 16-year-old child and because the child’s,sister, “with whom she has also developed an emotional bond, Uves in Florida and [she] expressly desires to continue that relationship.” Additionally the mother offered health and economic reasons in support of her relocation.
. In Zammit (at 534), the father’s relocation to North Carolina was denied as it “would almost certainly preclude any possibility of the mother and son reestablishing any meaningftil relationship, as the mother is attempting to do at this time.”
. In Mr. G. (id.), the mother’s relocation to Virginia Beach with her 18-month-old child was denied because the “quality, quantity and frequency of visitation will be adversely affected by a move that drastically changes the frequency with which the child and noncustodial parent can see each other.” In this case the father assumed his parental role five days a week going to the home when the mother was at work.
. In Ritz (at 437), the First Department found it “highly doubtiul that the parties’ resources are such as to facilitate frequent air travel between New York and Israel.” In sharp contrast, the Second Department found in Schreurs (at 655) it was feasible to maintain the parent/child relationship because the father was able to pay for the “mother’s expenses to visit the child in Florida every other weekend.”
. In Miller, the Court found the mother was the primary caretaker of the four-year-old child since birth and established the primary bond with the child. She offered the child a more suitable home environment, and had been