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The New York Law Journal
May 30, 1996
Terri L. Weiss, Marino & Weiss, P. C.
AFTER A 15-YEAR SILENCE, the New
York Court of Appeals rendered its first substantive decision on the law
of geographic relocation in the companion cases of Tropea v. Tropea and Browner
v. Kenward ((NYLJ,, March 29, p.. 27, colt 1). 1 A flurry of articles and commentary has
followed in its wake. One of this state's most renowned relocation experts
asserts that Tropea/Browner is a
"revolution in relocation law."2
In this author's opinion, all that Tropea/Browner
has "revolutionized" is the perception of many matrimonial
lawyers that relocation is now easier. In fact, it is not.
The Court of Appeals has merely
recognized reality by substituting an overriding "best
interests" analysis for the prevailing, "artificial"
three-part test developed by the lower appellate courts. See, e.g., Radford v. Propper, 190 AD2d 93, 100 (2d Dept. 1993).3
The years between 1981 and 1996,
during which that test had evolved, were fraught with contradictory
results in seemingly similar cases. This chaos resulted from the courts'
tortured attempts to squeeze the particular facts of a relocation case
into the requisite legal cubbyholes, in order to achieve the desired
result. It became nearly impossible to predict what factors would be
considered, let alone deemed controlling, in a given relocation case.
Certain courts cited the distance,
travel time, and ease and cost of travel to allow cross-country, or even
cross-Atlantic, moves; others forbade intrastate moves or moves to
adjoining states. Certain courts focused upon the custodial parent's
"economic necessity" to allow or disallow the move; while the
"economic necessity" of the custodial parent's new spouse was
considered or ignored by others. Some courts considered lifestyle changes;
others stated that "economic betterment" did not justify a move.
THE RESULTING CONFUSION often
intimidated custodial parents from moving, even for the best of reasons,
while non-custodial parents could easily oppose the proposed move.
Sometimes the opposition came from highly involved, loving parents who
truly feared losing powerful daily contacts with their children.
Sometimes, however, opposition was for ill-motivated reasons, such as a
desire for control over the custodial parent, or to obtain financial
concessions from the custodial parent.
As the Court of Appeals astutely
noted, the innocent victim was invariably the child.4 The "best interests" analysis
in Tropea/Browner puts an end to
the machinations of the courts and the parties, by embracing all of the
factors, which had been separately (and sometimes contradictorily)
considered, under one overriding umbrella: Is the proposed relocation in
the best interests of the child?
The practical effect of this
restructuring will be negligible. The trial courts had, for the most part,
been attempting to achieve this goal anyway, even if they were using more
circuitous reasoning to get there.
Matrimonial lawyers will still have
to present the same proof to justify or oppose a relocation: the effect of
the move on visitation; the existence of a suitably revised visitation
schedule; the manner in which the separation agreement addressed
relocation; the disruption of relationships in the event of a move; the
involvement of each parent and others in the child's life; the alternative
child care plan of the opposing parent; the distance and required travel
arrangements involved in the move; the reasons for the move; the living
conditions, educational, recreational, medical and other facilities
available in the new domicile; the results of the home studies regarding
the parties' current residences and the proposed new domicile; the likely
psychiatric impact upon the parties and the child if there is a move or
change in custody; and the violation of prior court orders. The list of
these and other factors to be considered in such cases is almost endless.
COURTS IN Tropea/Browner relocation cases
were not reluctant to order home studies, forensic psychiatric evaluations
and law guardians. Since Tropea/Browner
did not change the need to consider the factors described above, the
lower courts will be just as likely to obtain such outside involvement.
Tropea/Browner has raised concerns that parties will now be more
prone to litigate custody initially and thereby position themselves better
for a subsequent relocation battle.5
This is a fallacy: The parties will face the same constraints to avoid or
proceed with such litigation. Most parties do not litigate custody because
of the huge financial, mental and emotional burdens that custody battles
impose upon the parties and their children. Tropea/Browner will not lessen
those burdens, nor make them more palatable.
There is still a presumption
against relocation: The party seeking relocation must prove that the
proposed move is in the best interests of the child. To the extent that
the Court of Appeals validated the "fresh start" (whether due to
remarriage or economic betterment) as a basis for relocation, Tropea/Browner has merely
acknowledged the validity of the true motivation for most relocation
requests.
That recognition may yield another,
more positive result: discouragement of frivolous refusals, and
concomitant frivolous litigation, of uninvolved non-custodial parents to
consent to good-faith relocation. Under Tropea/Browner, both the custodial
and non-custodial parent will have to examine -- honestly -- his/her
reasons for seeking or opposing the move, and to assess -again, honestly
-- whether the relocation will be in the child's best interests. This is
as it should be: The move, a change in custody or the continuation of the
existing residence will affect the child of those parents, and the
relationship of that child to both parents, for years to come.
Notes:
(1) The last
substantive decision of the Court of Appeals on relocation was Weiss v. Weiss, 52 NY2d 170 (1981).
(2) See Barbara
Ellen Handschu, "Revolution in Relocation Law," (NYLJ, May
17); see also Leonard G. Florescue, "The New View of Relocation of
the Custodial Parent," (NYLJ, May 13, p. 3).
(3) That test was the following:
First, the relocating parent must show that the proposed move will not
effectively deprive the non-custodial parent of frequent and meaningful
access to, and interaction with, the child; next, if access will be
impeded, the relocating parent must prove that there are exceptional
circumstances for the move; and third, if there are such exceptional
circumstances, the move must be in the child's best interests.
(4) See Sondra Miller,
"Whatever Happened to the Best Interests Analysis in New York
Relocation Cases?," 15 Pace Law Review 339 (Winter 1995); Myrna
Felder, "The Court of Appeals and the Rules on Relocation," (NYLJ,
April 8).
(5) See n. 2supra.
Terri L. Weiss, a fellow of
the American Academy of Matrimonial Lawyers, is a member of Marino &
Weiss, P. C. in White Plains.
Copyright 1996, The New York Law
Publishing Company. All Rights Reserved.
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