'Implicit' Provision in Joint Custody Pact Held to Restrict Move
Jill C. Stone, Esq. of Addabbo & Greenberg is quoted in the article
January 29, 2008
by Vesselin Mitev
A relocation petition filed by the mother of a 7-year old boy after she moved him from Long Island to New Jersey without consulting his father was barred by an "implicit" restriction in the couple's joint custody agreement, a Family Court judge has ruled.
In Thomas H. v. Christine R., V-06452-04/07A, Judge Andrew Tarantino of Suffolk County dismissed the mother's after-the-fact petition to authorize her move from Commack to Mountainside, N.J. - a distance of 86 miles.
The case illustrates a common scenario facing parents, practitioners and Family Court.
"Relocation cases have increased exponentially and they are the major cases involving custody contention", said Andrew Shepard, a Hofstra Law School professor who heads the Center for Children, Families and the Law. "Often, after a divorce one of the parties will remarry or find another job and move, and, and that's where the legal system begins to draw a line in that parent's can't make unilateral decisions."
Here, the mother and father had reached a joint custody agreement on Dec 7, 2004. Ms. R., the mother, was named as the residential or custodial parent, but the father, Mr. H., was granted visitation on Wednesday nights and alternate weekends. The parties followed the agreement until Aug. 12, 2007, when Ms. R., a month after her remarriage to a long-time resident of New Jersey, David E., sent an email to Mr. H. stating that "effective immediately" their child, E.H., would be "residing in New Jersey".
Mr. H. then requested from Suffolk County Family Court an order granting him sole custody of his son on the found that she had already moved to New Jersey. Ms. R. then filed a petition seeking authorization for the move. Judge Tarantino then held a hearing on the matter.
According to the judge's decision, Ms. R. picked up E.H. while he was visiting his father and drove directly to New Jersey, without "even allow[ing] him to say goodbye to friends from his old residence.
She said their agreement lacked an express "radius" clause like those included in many agreements prohibiting her from moving out of state with her son. Moreover, she argued that it gave her final decision-making authority in the event of disagreement between her and Mr. H. on raising their son.
Judge Tarantino acknowledged that the agreement lacked an express radius clause prohibiting unilateral moves by the mother without the court's permission. But he said the court had to weigh the move against the existence of a joint custody agreement that established a specific visitation schedule.
"Joint custody entails more than just visiting with the child, it is assumed a joint custodian will be involved in all aspects of the child's life, a task that would be extremely difficult if the child resides hours away", wrote the judge. "Therefore, the Court finds that within the joint custody agreement, there is an implied radius clause that restricts the residential parent's ability to relocate without permission of the noncustodial parent or the Court."
Judge Tarantino also rejected Ms. R.'s argument that the agreement gave her final decision-making authority. He said that clause is meant to be triggered when the two parents cannot agree on an issue concerning the child "after discussing that issue." Here, he said, there was no discussion despite the fact that the father had tried to raise the issue in a January 2007 letter.
In support of her move, Ms. R. testified that she would be able to provide a better standard of living for her son. The judge agreed that her new three-bedroom house in New Jersey was 'clearly an improvement" over the one-bedroom apartment she and her son occupied on Long Island, but he said she had offered no evidence that comparable housing was not available on Long Island. Similarly, the judge said she had not demonstrated that Long Island schools were inferior to those in New Jersey or that her move helped her to secure a better job.
Ms. R. testified that she wanted to get "some space" between her son and Mr. H., whom she characterized, according to the ruling, as "a violent man with an uncontrollable temper". She testified that in October 2001, police had to be called after a verbal altercation in the presence of the child, although no arrests were made. In November 2006, Mr. H. allegedly threatened to knock down the door to Ms. R.'s residence as the child, who was scheduled for visitation, was not ready for curb-side pickup. The police were called but no arrests were made.
In 1998, Mr. H. allegedly grabbed Ms. R. by the throat during a verbal altercation, but police were not called. Finally, in April at a baseball game, Mr. H. allegedly became angered after learning that Ms. R. had left E.H. in the care of Mr. E. while on a business trip and threw a lawn chair at Mr. E. He charged the father with harassment and Mr. H. received an adjournment in contemplation of dismissal.
However, Judge Tarantino said those incidents did not rise to the level of cases in which the courts had accepted domestic violence as justification for a unilateral move by one parent. He said the mother's decision to move without warning the father hinged on one incident of alleged physical violence nine years ago, and she had been "evasive" when asked to clarify her position.
At the same time, Judge Tarantino wrote, "There was little dispute that the father has been an active participant in the child's life."
He said the testimony indicated the father was current on child support and "involved in all aspects of the child's development." Mr. H. went on doctor visits with the child and attended school events, daytime parent-teacher conferences and Little League games. The judge agreed that the father could not maintain this level of involvement if required to drive three to six hours round trip for every activity.
Patricia A. Condon, of McGuire Condon in Huntington, who represents Mr. H., said the absence of a radius clause actually made the joint custody more restrictive.
"If you move, you alter other aspects of the agreement that you had no right to alter" she said, pointing to the visitation schedule Mr. H. had with his son and the baseball games he attended.
Michael N. Klar of Carle Place, who represented Ms. R. said the custody agreement between Mr. H. and Ms. R. who were never married, only obliged them to "endeavor to agree" on the education and the general welfare of the child. Mr. Klar, who did not represent Ms. R. when the agreement was signed, said he has already filed a notice of appeal.
Meanwhile, Ms. R. has moved back to Suffolk County with her son. Mr. H. has requested increased visitation with his son.
Paraskevi Zarkadas of Smith served as law guardian.
Jill C. Stone, a law guardian and attorney with Addabbo & Greenberg in Forest Hills, who is not involved in the case, called Judge Tarantino's decision "very significant" and relevant to problems litigants experience in Family Court.
"You have a right to come to the court and get permission to move first," said Ms. Stone, who speculated that the move was a preemptive strike against Mr. H. who was likely to disapprove of the relocation.
"The Judge must determine what's in the best interests of the child and as they had agreed to joint custody, the judge found there was an implied radius clause in the joint custody agreement," she said.
Mr. H.'s motion for sole custody is still pending.