Relocating With Your Child | Long Island Family Law Lawyer

After a divorce is complete, if there were children of the marriage, custody of the child was resolved. Typically, though not always, one parent is awarded residential custody of the child subject to visitation rights of the other party.  After some time passes, one question which may rise is it whether is it possible for the residential parent to move out of the state.  The appellate department discussed this issue in Batchelder v. Bonhotel.

In Bonhotel, Father and Mother, never married and had one child.  They separated and stipulated that Mother was to be the residential parent, subject to the visitation of rights of the Father.  Father was entitled to see his son every other weekend and one overnight every other week.  The Father was consistent with his visitation with the Court finding that the Father and son benefitted from a close relationship.  Two years later, the Mother lost her job and made plans to move out of New York to Alabama. She informs Father the night before her departure.  Father petitions the Court for residential custody of the child.

As a first step, to change the custody arrangement there must be a significant change of circumstance.  In this case, step one was easily met.   The Mother moving out of the state constituted a significant change of circumstances.  Therefore, the Court immediately turned its attention to whether the Mother could relocate with the child.  In making such a determination, the Mother bears the burden of proof that she should be allowed to move by a preponderance of evidence.  The Court will look at the following factors: (1) the relationship with the parents; (2) the effect of the move on the noncustodial parent; (3) the potential enhancement to the custodial parent and child due to the move; and (4) parents’ motives for seeking or opposing the move.

In this case, the Mother claimed that she was unemployed and had better prospects in Alabama with her fiancé.  With a little digging, it was discovered she recently met her fiancé online and was planning to stay at his residence.  It was also discovered that her ability to support herself and her son, in addition to the child support, was completely dependent on the fiancé.  Finally, and the fatal blow to the custody issue, the Court found that the Mother failed to foster a relationship between her son and the Father.  She had quit her job so that she could move to Alabama and failed to demonstrate that she was providing a stable environment for her son.  Evidence to support her lack of support between the son and the Father was the fact that she sprung the move on the Father the day before and refused to give the Father contact information regarding where she was going and how he could contact his son.   The Father, on the other hand, had a steady job, and though he had a girlfriend, was in a steady relationship providing a stable environment.  The key though was the Father’s willingness and work towards fostering a close relationship between his son and the Mother.  He explained that if the Mother were to leave for Alabama, he committed to skype sessions with his son to see his mother no less than two or three times a week.  As a result, the Court denied the Mother’s request to take the child out of the State and granted the Father’s request to change residential custody to the Father.

In this case, the Mother was unable to show how leaving the state would enhance the child’s life, and what I believe was the key to this ruling, the Mother failed to show how she planned on dealing with separation between the Father and his son.  Here the Mother was actively hostile to the Father and in no way fostered the relationship.  The lesson to take away from this ruling is that the Courts do not look favorably on a party who in any way interferes with the relationship between the child and your former spouse.  One can surmise that the uphill battle she had to move her son to Alabama was not made easier with her open hostility to the Father.

If you do want to move your child from the state, make sure that you have a well thought out plan which includes fostering the relationship between your child the non-custodial parent.  In addition, be ready to explain how moving your child out of state and away from the non-custodial parent is in the best interests, i.e., will advance the child’s education, financial welfare, and education. If you face any problems with relocation and child custody make sure to contact a divorce attorney a Long Island family divorce lawyer at Divins & Divins, P.C. for a free consultation.

Grandparents Rights to Visitation | Long Island Divorce Lawyer

If you are a grandparent, what rights do you have to visit your grandchildren?  Can you get a Court to grant you visitation with your grandchildren if the parents forbid it?  The Court of Appeals for New York addressed this issue in its decision of In the Matter of E.S. v. P.D., in 2007.

In that case, husband and wife were married and had one child. Unfortunately, the wife was diagnosed with cancer.  When the diagnosis was made, wife’s mother moved in to help her daughter with daily errands and other things like cooking, cleaning and caring for the couple’s son. The wife passed away and the decision was made that the grandmother would stay in the house to help raise the child while husband worked.  For the next five years, the grandmother helped raise the child.  At some point, arguments between the father and grandmother began regarding the best way to raise the child.  As a result, the father asked the grandmother to leave and severely curtailed the visitation between the child and his grandmother.  As visitation became less and less frequent, grandmother petitioned the Court for visitation.  The father’s position was that the grandmother was not raising his son the way he deemed fit and was usurping his role as the father.

Domestic Relations Law §72(1) states that where either or both of the parents of a minor child, residing within this state, is or are deceased, or where circumstances show that conditions exist which equity would see fit to intervene, a grandparent may apply to the supreme or family court, and the court, by order after due notice to the parent or any other person or party having the care, custody, and control of such child, to be given  in such manner as the Court shall prescribe, may make such directions as the best interest of the child may require, for visitation rights for such grandparent in respect to that child.

When a Court is faced with a petition from a grandparent requesting visitation, it first must find that the grandparent has standing to come into court in the first place.  There is no automatic right for a grandparent to see their grandchild.  The Domestic Relations Law only provides a vehicle for a grandparent to seek visitation.  In order for a grandparent to have standing the Court must find one of two things exist.  First, if one of the two parents has passed away, then the grandparents have standing.  The other test is a more of a catch all which states that the grandparents have shown equitable circumstances which dictate that they should at least be heard as to why they should have access to their grandchild.

In this case, since a parent passed away, the grandmother had standing and was able to petition the Court for visitation.  Based on the facts in this case, specifically a five year relationship with the child where the grandmother was assisting in raising the child, the Court held that it was in the child’s best interests to continue this close relationship with the child.  Despite this ruling, the Court was mindful of the father’s wishes and right to raise his son in a manner which he deemed proper. However, in this case, the Court found that the fights and other allegations in which the father leveled against the grandmother were unsubstantiated.

In the circumstance where both parents are alive, the grandparents have a harder time establishing standing.  In order to have standing when both parents are alive, the grandparent would have to show that equity dictates that they be heard in Court.  What should a grandparent be able to show? Their best bet is to establish a long and close bond with the grandchild.  The fact that there is an acrimonious relationship between the parents and the grandparents are not enough to establish or deny visitation.  The key will be the relationship between the grandparent and the child before visitation is curtailed or denied.  Even if you are able to establish standing, grandparents normally have a high hurdle to overcome in forcing visitation.  The parental right to make decisions for their children and raise them in a manner they deem fit is paramount to raising children and will not be lightly disregarded.

Grandparent visitation is a complicated matter which should not be entered into lightly.  Your case will depend on the facts and circumstances of your particular case.  Assuming you have standing, preparing for the hearing is crucial.  If you cannot amicably settle this matter and must seek judicial intervention regarding grandparent visitation, seek our advice from one of our Divorce attorneys at the Long Island Divorce Law Firm of Divins & Divins, P.C., immediately so that we can begin preparing your case for the best possible outcome.

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