Brief Fact Summary. Two cases are analyzed in which the custodial parent requested permission from the court to move out of the area with the children in opposition to a custody order. In both cases the father appealed.
Synopsis of Rule of Law. Rather than applying the three-step meaningful access exceptional-circumstances analysis, each relocation request must be considered on its own merits with due consideration of all the relevant facts and circumstances and with predominant emphasis being placed on what outcome is most likely to serve the best interests of the child.
This is a conciliation of two cases in which the divorced spouse who previously granted custody of the couple’s minor offspring seeks permission to move away from the area in which the noncustodial spouse resides.
In Tropea v. Tropea, the parties were married in 1981 and produced two children. They divorced in 1992, with a judgment providing that petitioner mother would have sole custody of the children, with respondent father granted visitation on holidays and at least three day each week. The parties were barred from moving out of the county where both of them resided without judicial approval. Petitioner sought a change in visitation arrangements and permission to relocate with the children. Respondent opposed the relief and filed a cross petition for change of custody. Petitioner testified that she wanted to move due to her plans to remarry, and that her and her fiance had purchased a home in the new area. She testified that she was willing to cooperate with a liberal visitation schedule, and she was prepared to drive the children to the father’s home two and a half hours away. All parties recognized that the distance between the homes made midweek visits impossible during the school term. Respondent claimed that petitioner’s need to move was the product of her own life-style choice and he consequently should not b the punished parent. He proposed that he be awarded custody if the petitioner relocated. He produced evidence that he maintained frequent and consistent contact with his children. The presiding judge denied petitioner’s request. He applied a more restrictive view of relocation, finding that when the move unduly disrupts or substantially impairs the noncustodial parent’s access rights to the children, the custodial spouse seeking consent must bear the burden of demonstrating exceptional circumstances, such as a concrete economic necessity. Applying this principle, the judge found the petitioners desire to obtain a fresh start insufficient to justify the move.
â€¢ In Matter of Browner v. Kenward, the parties were married in 1983 and had one son. In 1992 a separation agreement was arranged which provided petitioner mother with physical custody of the couple’s child and gave respondent father liberal visitation, including midweek overnight visits and alternating weekends. Respondent was to remain in the marital residence and petitioner and the son were to live nearby with the petitioner’s parents. She was required to seek approval if she intended to move more than 35 miles from respondent’s residence. In October 1992 petitioner sought permission to relocate 130 miles from respondent’s home because her parents were moving. Respondent opposed, contending that he was a committed and involved noncustodial parent and the move would deprive him of meaningful contact with his son. Petitioner testified that she was unable to find a job in the original area but was unable to do so, unlike the proposed area to which she wished to move. An additional factor was the emotion support and child care she received from her parents. The evidence demonstrated that petitioner was somewhat dependant on her parents for financial and moral support, and petitioner’s son had become especially close to his grandparents. The boy also had a close relationship with his cousins in the new area. Respondent argued that the move would eliminate his midweek visits, as well as participation in his child’s daily school, sports, and religious activities. The trial court ruled that petitioner’s claim that she was unable to secure employment and housing in the area was less than convincing, and that respondent had been vigilant in visiting his son. Nonetheless, the court authorized the proposed move, noting it would not deprive respondent of meaningful contact with his son. Further, the court found the move would be in the best interests of the child, would reduce bickering between the parents, and would enable the child to have healthy peer relationships. Additionally, the emotional advantages petitioner would realize from being close to her parents would ultimate benefit the child. Respondent appealed.
Issue. Were the courts correct in applying the three-step meaningful access exceptional circumstance analysis in the above cases?
Held. Each relocation request must be considered on its own merits with due consideration of all the relevant facts and circumstances and with predominant emphasis being placed on what outcome is most likely to serve the best interests of the child.
â€¢ In the lower courts a series of formulae and presumptions have been established to aid in the decisions regarding relocation cases. He most commonly used formula is a three-step analysis that first looks to if the proposed relocation would deprive the noncustodial parent of regular and meaningful access to the child. If a disruption of regular and meaningful access is not shown, the inquiry is truncated, with the courts not going on to assess the merit and strength of the motive for moving. If the disruption is established, a presumption that the move is not in the child’s best interests is invoked and the custodial parent must demonstrate exceptional circumstances to justify the move. If this hurdle is overcome, the court goes on to consider the child’s best interests.
â€¢ The premise behind the formula is that the child derives benefits from the second parent, and the geographic changes that significantly impair these contacts are disfavored. However, the legal formula is problematic and unsatisfactory, and instead each case should be considered on its own merits. Although the factors of the formula should be considered, the needs of the children must be afforded the greatest weight.
â€¢ In Tropea, the appellate division found the move was in the children’s best interest, therefore there is no reason to upset the determination on these points. In Browner, the appellate division’s analysis was at variance with the open-ended balancing analysis that the law requires. However, the Family Court already evaluated the balancing test factors in the equation. Therefore, both of the above cases should be upheld.
Discussion. The Court uses the two cases to demonstrate that a specific formula for determining when a move by a custodial parent will be permitted is inappropriate, but rather each determination must be made based on the individual facts of the case based upon the best interests of the child.