STATE OF NEW YORK

SUPREME COURT : COUNTY OF CHAUTAUQUA


 

PAMELA J. FOSTER,


Plaintiff,


-vs- Index #H-8361


LEROY FOSTER,


Defendant.


 



DAVID J. CHISPELL, ESQ.

for Plaintiff


MORIARITY, DEE

(Robert B. Moriarty, Esq.

of Counsel) for Defendant



DECISION and ORDER



GERACE, J.



This is a motion by plaintiff to set aside the December 12, 1994 stipulation of the parties in which they agreed they both would relocate to Columbus, Ohio, with Alicia, the child of the marriage, so that the husband could accept a secure position with the Federal Government while they tried to work at reconciliation through counseling here and in Ohio.


At the time of the stipulation, there was -and still is- in existence an order of Family Court of Chautauqua County (Hon. Lynn L. Hartley, FCJ) which decreed the parties have joint custody of their daughter Alicia (age 3) with physical placement to be with the father. The order provided the child was not to be removed from the County without the written consent of the mother or order of the Court, but that the consent would not unreasonably be withheld.


The December 12 stipulation resulted after a conference on the divorce action commenced by plaintiff. As the parties and counsel expressed the outline of the stipulation in chambers, it was clear that plaintiff anticipated the parties would live under the same roof in Ohio under a truce while they worked toward full reconciliation; and was somewhat taken back by the husband's position that full reconciliation would depend on successful counseling. In spite of this initial difference in understanding, the parties entered into the stipulation.


In addition to approving the move, the stipulation provided that the husband was to pay spousal maintenance if they lived separately in Ohio; that plaintiff would continue her education; that during the day Alicia would stay with her; that visitation under the order of Judge Hartley was to be expanded to provide plaintiff with an additional over-night in the off week of every two week period. By implication, plaintiff and defendant would be permitted to take Alicia back to Chautauqua County to visit with relatives of both; that the parties would seek counseling in Chautauqua County and Ohio.


Following the stipulation, but, before any order could be signed, the wife had a change of heart and sought to rescind the stipulation for the husband's alleged fraud and misrepresentation, claiming the husband was not honestly seeking reconciliation; that in discussions after the stipulation was approved, she claims he admitted he had seen other women, albeit not intimately.


In the meantime, the husband accepted the employment offered to him by the United States Defense Finance and Accounting Services Center in Columbus, Ohio; he signed a lease for a two bedroom townhouse in Westerville, Ohio; paid to move his furniture and furnishings to Ohio; gave up his apartment; and was prepared to move to Ohio until he was served with the Order to Show Cause.


After discussions in chambers and a hearing on the motion, the Court issued a decision holding that plaintiff had not produced sufficient proof for the Court to set aside the stipulation, and converting the motion to one for modification of the stipulation; that defendant could move the child, but, visitation was to alternate every other week.


The conversion of the motion is based on the fact that while plaintiff has not established fraud, she does not wish to join in the move to Ohio as stipulated, and the Court is reluctant to force her to do so in order to maximize contact with her child.


The decision to allow the husband to move the child is based on the original stipulation; on the fact that the husband had been unsuccessful in his efforts to obtain employment locally; that the plaintiff had stipulated to Alicia being placed with defendant; that plaintiff is unemployed and is still seeking to complete her education; that it would be to Alicia's interest to have the father employed in secure employment with the Federal Government; that the plaintiff would not be deprived of the rights of visitation given to her under the order of Judge Hartley.

 

The decision for alternating weeks is intended to insure the child will have frequent contact with both parents, even though it will impose a burden on the child.


The Courts have a duty to protect a child's relationship with both parents. Custodial parents may be called upon to make sacrifices to ensure the child's right of access to the non-custodial parent. JUDICIAL SEMINARS, 1993, MATRIMONIAL LAW UPDATE, BARBARA ELLEN HANDSCHU, ESQ., citing DAGHIR vs DAGHIR, 82 AD2d 191, 56 NY2d 938.


Recent cases indicate that in cases where the non- custodial parent has had consistent and frequent access, a move will not be permitted if it involves economic betterment as distinguished from economic necessity, or where it is designed to provide a "fresh start. HANDSCHU, supra; WEISS V. WEISS, 52 NY2d 170; SANDERS V SANDERS, 185 AD2d 716 (4th Dept., 1992.


Questions the Court must ask: Does the move unduly disrupt or substantially impair the non-custodial parent's access rights? If the proposed move is likely to deprive regular and meaningful access and interaction with a child, are there exceptional circumstances which otherwise justify relocation? Is the move in the child's best interest?


The Court in WEISS, supra, held that a child has a "natural right" to access with both parents.


Reference is made to these tests and cases to demonstrate that the Court must look out for the best interest of the child; had there had not been a stipulation, defendant might have had even a greater hurdle to obtain permission to relocate the child.


Upon reflection and consideration of all the evidence, and the recommendation of the law guardian, and looking out for the interest of the child, the Court further determines:


1. The Court order of Judge Hartley is modified to provide that defendant may remove the child to Columbus, Ohio, subject to the continued jurisdiction of this Court and Family Court. Placement is still with the husband as provided in that order.


2. Plaintiff shall have the option of moving to Columbus, Ohio, under the terms of the December 12, 1994, stipulation.


3. Whether she elects to remain in Chautauqua County or moves to Ohio under conditions short of full reconciliation, defendant must pay plaintiff $100 a week for maintenance and child support for a period of 3 years or becomes gainfully employed full time, whichever occurs first, plus 50% of reasonable tuition and course expenses during that time so she can completes her education.


4. Plaintiff shall have Alicia every other week from Friday night to the following Friday, provided she picks up the child at an agreed upon place approximately half way between Columbus and Jamestown, and, returns the child to that point a week later, unless defendant elects to come all the way to Jamestown on any given Friday. Plaintiff may visit Alicia in Ohio during the week by giving defendant reasonable notice, and, on reasonable notice, defendant may visit Alicia in Jamestown during the week the child is with plaintiff. If they cannot agree on the terms and times, they must submit the problem to the Dispute Resolution Center at Jamestown before making application to the Court.


5. If on the week she is scheduled to have Alicia, she is unable to because of the infant's illness, plaintiff may travel to Columbus, Ohio to visit her daughter, the parties are to share plaintiff's expenses as follows: plaintiff 25% and defendant 75%, and, her week may be made up at a later time. The defendant shall have the same right of visitation should Alicia become ill in Jamestown.

 

6. During the weeks Alicia is with her mother, her mother is to see to it that the child's grandparents and other relatives have an opportunity to visit the child, or have the child visit them.


7. The parties are to see that Alicia celebrates Christmas with both parents by a division of time agreeable to them. If they cannot agree, Christmas Eve is to be with one parent overnight; Christmas day from 11 am to 8 pm with the other parent, on an alternating basis, plaintiff to have first choice for 1995.


8.Both parties are to enroll in the P.E.A.C.E program. but not the same session, at Jamestown Community College on February 21, 22 and 23 from 7 until 9 P.M., or all day Saturday, March 4, 1995. P.E.A.C.E. is under the sponsorship of Family Services of Jamestown, New York, and submit a report to the Court on the program.


9. Both parties are hereby directed to go to their local library to obtain and read at least one book which describes the impact of parents' matrimonial battles and divorce on the children of the marriage, preferably SECOND CHANCES written by Judith S. Wallerstein and Sandra Blakeslee, and to read the attached article entitled "Pushing the buttons on the ex".


10. By February 6, 1995, each party shall for three days in succession, for a minimum of one hour each day, write or type (not dictate) without any phoniness, pretense, hypocrisy, vindictiveness, or effort to impress anyone, write whatever comes into their minds about themselves, their marriage, children, laws, courts, the PEACE program, the article and books refereed to above, their hopes, wishes, ideas, jobs, counseling, or anything whatsoever, in their own words, expressing their own feelings; and they each must provide the original report to this Court, in camera and their counsellor without any need to correct grammar, mistakes, or, make a re-write; it is the desire of the Court to have the original expressions rather than re-writes, modifications, corrections, or changes. Such report to be confidential and not to be make available to the other party.


JOINT CUSTODY


11. Joint custody that means that the parents shall share major decisions involving the health, education and welfare of the child. Each parent at all time shall have:

1) the right of access to medical, dental,

psychological and educational records of the

child;

2) the right to consult with a physician,

dentist or psychological of the child;

3) the right to consult with school officials

concerning the child's welfare and educational

status, including school activities;

4) the right to attend school activities;

5) the right to be designated on all records

as a person to be notified in cause of emergency;

and

6) the right to manage the estate of the child

to the extent the estate has been created by the

parent or parent's family.


Each parent during his or her parenting time shall have:


1) the right to physical possession and to direct

moral training of the child;

2) the duty of care, control, protection and

reasonably discipline of the child;

3) the duty to support the child including providing

the child with clothing, food, shelter, medical and

dental care not involving an invasive procedure; and

4) the power to consent to medical, dental and

surgical treatment during an emergency involving

immediate danger to the health and safety of the

child.


The Court is reluctant to micro-manage the custody or visitation in this case. Accordingly, Counsel are directed to submit any proposals for additions to this DECISION and ORDER, with the understanding that it shall stand as is until and unless modified by this Court.


The parties having agreed, the matter is restored to the matrimonial calendar for a trial on the merits on all issues.

 

This Court will retain jurisdiction; defendant is enjoined from commencing any action for divorce, separation, custody or visitation modification in any Court other than this one or, where appropriate, Chautauqua County Family Court.

Should the defendant elect not to move to Ohio, the order of Judge Hartley shall remain in full force and effect.


This is the Decision and Order of this Court. No further order shall be necessary.


Dated: January 5, 1995

Mayville, New York


 

JOSEPH GERACE

Justice of Supreme Court