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#378 Third Department Caselaw Round-Up for May 31, 2012, Part 3 of 6

378 Post 05-31-12, Part 3 Third Department May.pngThe first case is the classic application of Tropea to the fact pattern. Mom wants to relocate. Dad opposes the relocation. Mom has a number of factors she needs to prove in order to be able to relocate.

The second case? Can you say SSL §384-b? Sure, I knew ya could. And, once again, the results speak for themselves.

378 Post-2 Columbia County.pngCase #266 #513713
Feathers v. Feathers
Columbia Family-Nichols Issues: Best Interests; Custody; Divorce; Preponderance of the Evidence; Relocation; Stipulation; Visitation Cited statutes: FCA Art. 6 Affirmed

The divorced parents have two children. Pursuant to a stipulation of the parties, reduced to an order, the parties shared joint legal custody of the children with primary physical custody to the mother and with very specific visitation to the father.

A few years later, the mother married “a man who shared custody of five daughters and lived in Warren County”. The problem? Well, the new husband’s home “was 112 miles from the mother’s home – the parties’ former marital residence where the children had lived for their entire lives”, in New Lebanon, Columbia County. Furthermore, the father’s home, in Petersburg, Rensselaer County, was 105 miles from the new husband’s home. Oddly, the Third Department never divulges the town in which the new husband lives – which, to me, seems important, given the huge size of Warren County.

When the mother notified the father of her intent to relocate to Warren County with the children, the father filed a petition for custody. The mother cross-petitioned to relocate. After a hearing, the court found that the mother’s relocation to Warren County would not be in the children’s best interests and dismissed her petition. Because the mother would not relocate without the children, the father’s petition was therefore dismissed as well.

The mother appealed.

Really, all you have to know at this point are the relevant factors enumerated in Tropea. And they are?

Essentially, the factors can be distilled down to the following:
1. The reasons for seeking/opposing the relocation;
2. The quality of the children’s relationships with the custodial/non-custodial parents;
3. The impact of the relocation on the quantity and the quality of the children’s relationship with the non-custodial parent; and 4. The enhancement of the economic, educational, and emotional quality of life of the custodial parent and the children, induced by the relocation.

The court was happy with factors 1 and 2. However, the court was unconvinced when it came to factors 3 and 4. The relocation would substantially deprive the father “of three dinner visits every two weeks and make it difficult for him to attend the children’s school and athletic activities”. Furthermore, it was “unclear that [the mother’s] new situation would enhance the mother or [the] children financially”.

As you can well imagine, relocation cases are hard to win – though not impossible.

378 Post-3 St. Lawrence County.pngCase #267 #513033
In the Matter of Harmony P.
St. Lawrence Family-Potter Issues: Best Interests; Clear and Convincing; Drug Abuse; Foster Care; Permanent Neglect; Reasonable Efforts; Sex Offenders; Surrender; Termination of Parental Rights Cited statutes: SSL §384-b Affirmed

DSS filed a TPR petition against the father of a child. The father had previously had his parental rights to another child terminated. After a hearing, the father’s parental rights to this child were terminated as well.

The father appealed.

Oddly, the father’s appeal focused only on rearguing DSS’ successful motion to dispense with reasonable efforts and not the adjudication of permanent neglect. The Third Department agreed with the court that DSS need not utilize reasonable efforts to reunify the father and his child, in part because of the prior TPR against the father. However, the court also found that the father had failed to complete his drug abuse and sex offender treatment and rehabilitation until only very recently, giving the court effectively no time within which to evaluate the likelihood of the father’s relapse in both areas. Thus, under the totality of the circumstances, reasonable efforts were not required of DSS.