Some knots can — and must — be unraveled but the tender sinews of loving parents' hearts defy easy solutions.Justice Richard A. Dollinger
Justice Dollinger was tasked to grapple with the complex issues of a relocation battle between a loving mother -- who raised a child in New York for a dozen years, and faced with the possibility that he would have to move to a distant home -- and a loving father seeking to bring that child into his new home in a different state – Delaware.
Joy and Jeffrey were two parents who loved their child, Jax, a child who loved both parents. In this case, there is no suggestion of any flaws in either parent's skills and attention, and there was no preference stated by the pre-teen-aged child to relocate. But there was a substantial distance between the two households.
Jeffrey petitioned the court to allow relocation of the child to Delaware.
In response, Joy asked the court to change the joint custodial decision-making, declaring her to be the primary residential parent, giving her control over Jax’s activities. Joy wanted Jax to continue to live and attend school in Monroe County (Rochester, NY).
The court was asked to determine which residence - New York or Delaware - served the best interests of the child – Jax.
In determining whether the proposed relocation is in the child's best interests, the court had to consider the following:
- Each parent's reasons for seeking or opposing the move.
- The quality of the relationships between the child and the custodial and noncustodial parents.
- The impact of the move on the quantity and quality of the child's future contact with the noncustodial parent.
- The degree to which the custodial parent's and child's life may be enhanced economically, emotionally and educationally by the move.
- The feasibility of preserving the relationship between the noncustodial parent and child through suitable parenting time arrangements.
Here is the testimony heard by Justice Dollinger:
Testimony of Jeffrey (Father)
Q. Why do you want to relocate Jax to Delaware?
A. I work for the Postal Service. I was relocated to Delaware in the summer of 2019 by my employer. I had no say in that. As a consequence of the relocation, I did the best I could to maintain a connection with my son.
Court-Appointed Expert Testimony - Doctor No
Q. Being that Jax is 12 years old, won’t a relocation to Delaware impact negatively on the relationship between him and his mother?
A. Well, at the dawn of the teenage years, a child's life changes. The impact of peers, the need for friendships, the impact of extracurriculars will disrupt the child's interactions with his parents and family. These new aspects of his life consume time and attention away from his parents.
Q. And the impact?
A. Yes… either parent, living a substantial distance away from the child, would likely face less of the child's attention during these transformative years.
Q. What about in Jax’s case?
A. In this instance, either parent, living 350 miles away, will find that the distance between them and their child will only be amplified during the child's junior high and high school years.
Q. So, in your opinion, is the move doable without harming the relationship between Jax and his mother?
A. The fact that Jax will be required to jump in a car and travel six hours each way to visit a parent will be a challenge to Jax's extracurricular and social life and could easily sow the seeds of discontent between the child and the distant parent.
Q. And your conclusion, doctor?
A. The parents have been joint custodians for many years and have really done a great job in cooperating with each other. Any resentment that is felt by Jax will require both of his parents to be vigilant in preserving the bond between mother and son. They have the intellectual and emotional ability to accomplish that.
Q. Let’s talk about Jax’s emotional health with respect to this dramatic change in his life: will Jax be traumatized?
A. The fact that Jax will be living in Delaware and, in essence, commuting at certain times back to Rochester will complicate the child's maturing years. But the record shows that for almost a year, Jax has been traveling on alternate weekends to Delaware to visit his father and then returning home on Sundays to go back to school in Rochester. The travel time is between five and half and six hours each way. So, on any visitation weekend, Jax ends up spending 10-12 hours in the car traveling, and only spends 24-36 hours in his father house in Delaware. If the tables are turned and relocation granted, the same would be true for the mother: the child's alternate weekend visitation would mean that the mother will have only 24 -36 hours every two weeks for most of the school year. This substantial reduction in interactions between mother and child requires that accommodations would need to be made during non-school period, especially the summer and school breaks.
Q. But, doctor, won’t Jax’s mother be taken out of the loop of the child’s development?
A. Counsel, Jax and his parents live in a world of almost constant communication: his mother can check Jax's homework and monitor his achievements on a daily basis, even though she lives 350 miles away. There is no reason why the world of school-to-parent "portals" viewed remotely through the Internet, Facetime, Skype and Zoom cannot permit this mother to closely observe her child's education from that distance.
Q. And that would be the same for Jax as having his mother by his side?
A. No. It will not be the same as having his mother at his elbow, but the father's professed commitment, the mother's diligence, the ability to monitor through new technology, the fact that the child's school assessments will travel with him and the child's sense of security after the relocation may make it easier for him to get used to his new life.
Statement of Jax
Q. Jax? Do you want to move to Delaware to live?
A. Yes. I want to be part of the life of my younger half-sister in Delaware. She needs her big brother. Why should my baby sister go through life without the protection of her big brother. If she lived here in Rochester, I would stay here. After mom and dad go, me and my sister will only have each other.
The Ruling of the Court
The father's application to relocate the child to Delaware is GRANTED.
Here are the terms:
- Jax’s residence in Delaware shall commence August 15, 2020
- Until then, Jax shall have visitation with his father only on an already scheduled vacation - if any - and if no such vacation is scheduled, then only for the week of July 27 - August 2
- Labor Day weekend this year shall be spent with his mother
- Thereafter, the child shall have one weekend a month with his mother and that weekend shall be a long weekend, when available — Colombus Day weekend in October, Veterans Day weekend in November, Thanksgiving weekend (this year); one week at Christmas, Martin Luther King's Holiday in January; one of the two spring breaks each year; Mother's Day weekend, and July 4th, 2021;
- Thereafter, the parents shall rotate the major holidays each year: Easter, Memorial Day, July 4, Labor Day, Colombus Day, Thanksgiving and the day of Christmas
- The mother shall have two two-week periods of visitation each summer and shall have such other visitation as the parents may agree
- The parents shall make every effort to have the child attend family occasions including special birthdays of relatives, weddings, funerals or other special occasions
- The parents shall share the cost of transportation or driving for the child, but the father shall on an annual basis pay the mother $100 per month to cover transportation and other costs
- The mother shall be permitted daily telephone calls with the child and may use any technology to confer with child and the father shall not interfere with such communications
- The mother shall be listed as primary respondent on any academic, educational, healthcare or other maters involving the child and shall be given advance notice of any appointments for the child with any other providers and shall have access to any reports or analysis as a consequence of such visits
- Any other visitation on which the parents can mutually agree.
This was a case involving parents who put their inability to live together in the same house aside for the benefit of their child. This was a difficult decision for Justice Dollinger.
He likened this problem as a Gordian Knot:
Gordius, King of Phrygia, tied his chariot to a hitching post before the temple of an oracle with an intricate knot, which, it was prophesied, none, but the future ruler of all Asia could untie. In the course of his conquests, Alexander the Great came to Phrygia, and, frustrated with his inability to untangle the "Gordian knot," simply sliced through it with his sword. His subsequent success in his Asian campaign has been taken to mean that his solution to the "Gordian knot" fulfilled the prophesy.
Maybe this case was not a battle for World Domination. But the judge had a really difficult decision to make. And he made it. And maybe Jax will not have his mom around as much as both would probably like. But in the end, Jax’s little sister will now have the protection of her big brother.
Here is the case: http://www.nycourts.gov/reporter/3dseries/2020/2020_50796.htm