Custody Case: A relocation's disturbing effect on the children

Jeremy and Anne were married in 1993. After a 14-year marriage and two children, Anne filed for divorce in 2007. Ms. Holtzman represented Jeremy. The children, both girls, were born in May 1996, and November 1998, respectively. At the time Anne filed for divorce, they were eight and ten.

The couple, who had been raising their children in suburban Rockland County, New York, initially agreed to share custody of their children -- one week on, one week off. In their divorce agreement, the parties agreed to maintain residences within close proximity to each other, and not to do "anything which shall estrange the children from the other party or injure the child's opinion of the mother or father." The agreement further required that neither party could relocate with the children without giving the other party 90 days' written notice and an opportunity to object.

Anne Violated the Custody Agreement

The shared custody arrangement worked well until July of 2011, when Anne chose to relocate to an exclusive town on the eastern end of Long Island, New York, nearly three hours away. She had met a man and was planning to remarry. However, Anne had failed to give her ex-husband the required 90 days' written notice of her plan to relocate, as set forth in their separation agreement. She also violated her agreement not to relocate until the parties agreed or the court made a decision.

Jeremy, upon learning of Anne's relocation plan, went to court and obtained a stay to prevent her from removing the girls from Rockland County and enrolling them in schools on Long Island. He asked for sole physical custody of the two children. In response to Jeremy's action, Anne petitioned for a modification of the Judgment of Divorce, also seeking sole physical custody of the girls.

A Child Custody Trial Begins

At trial, most witnesses agreed that both parents had always enjoyed healthy and loving relationships with the children. However, subsequent to Anne's move to Long Island, friends and family observed that the children became dismissive, critical, and even defiant of their dad. Two of Anne's own sisters actually testified on Jeremy's behalf, describing how Anne had been alienating the girls from their father as well as from their aunts.

The court did not authorize an immediate move to Long Island, as Anne had asked. Instead, the girls were enrolled in school in Rockland County. However, the girls now refused to go to school. They had never previously been defiant, and when Jeremy requested that Anne speak with them, she refused. A forensic psychiatrist appointed by the court to evaluate the girls said that both were in a sustained state of tantrum when he met with them. They believed that they were entitled to have, and should have, what they wanted. The forensic expert reported that he believed the mother's behavior had put the girls in a divided situation and caused a crisis in their lives.

Court Suspends Contact Between Mother and Daughters

In October of 2011, the court temporarily suspended contact between the girls and their mother because of their refusal to go to school. Once the court issued its order, the girls began to attend school regularly, and became a bit more cooperative with Jeremy at home. In order to improve the situation, Jeremy hired a psychologist, and reached out to the county's Family Assessment Center, who began working with the family. After refusing to attend school for much of September, the girls seemed to be making friends at school, and Jeremy also welcomed the friends they had made in Long Island into his home.

However, when the girls later spoke with the judge in his chambers, they said that they would prefer to live with their mother, that they were closer to her, and presented a negative picture of life in their father's home. Other comments revealed that they may have been far more involved in the details of the litigation than is appropriate for children.

The Experts Testify

During the trial, the forensic psychiatrist who had assessed the situation gave his testimony. The doctor described Jeremy as a very stable person invested in school, work, and music, who spent time hiking and biking with the girls. He testified that Anne was not that stable, having had several homes in Rockland, and an eviction; he also expressed his concern about Anne's relationships with a number of men over the past several years. For these and other reasons, the doctor testified that it would be in the best interest of the children to remain in the custody of their father.

A private psychologist who had been working with the children on and off over the years also expressed concern that the mother was undermining the children's relationship with their father. Under the law, the court was required to determine what custodial arrangement would be in the children's best interests. The judge found that the stability the children had enjoyed before Anne's relocation had "evaporated as a result of [her unilateral] decision." The court maintained that Anne had acted selfishly, and found that Jeremy represented greater stability for the children. Additionally, the court found that Jeremy had always shown great willingness to foster the girls' relationship with their mother, whereas Anne had selfishly put them into "a horrible situation...making them warriors in her quest to spend her days in Long Island."

The Judge Makes His Decision

After considering all the evidence presented, as well as the arguments of the lawyers, and the best interests of the children, the court gave Jeremy even more than he had originally asked for. The judge awarded Jeremy sole physical custody of the children, and legal custody as well. Because Anne had relocated in violation of her divorce agreement, she was also required by the court to pick up and return the children for all visitation.

Ms. Holtzman prevailed in this complex custody litigation, as she has in many other custody cases, including precedent-setting cases in the State of New York. If you need an experienced trial attorney, you can reach the Law Office of Ellen B. Holtzman at 845-627-0127.