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Burden of Proof for Relocation with Child Not Met

In reversing Family Court, the Second Department determined there was not a sound and substantial basis for granting the mother’s request to return to South Africa with the couple’s child.  The court explained the analytical criteria for relocation:

A parent seeking to relocate with a child bears the burden of establishing by a preponderance of the evidence that the proposed move would be in the child’s best interests … . In determining whether relocation is appropriate, the court must consider a number of factors, which include “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, and the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements”… . In assessing these factors, “no single factor should be treated as dispositive or given such disproportionate weight as to predetermine the outcome” … . However, “the impact of the move on the relationship between the child and the noncustodial parent will remain a central concern” … . “In the end, it is for the court to determine, based on all of the proof, whether it has been established by a preponderance of the evidence that a proposed relocation would serve the child’s best interests” … .

… [T]he record is devoid of evidence that he has ever harmed the child or directed his anger toward her, and many of the incidents described by the mother involved the father’s suicidal ideation and infliction of harm upon himself. Significantly, the court-appointed psychologist found that the father was currently emotionally and mentally stable, and at low risk of neglectful or abusive behavior toward the child. Moreover, the record shows that the mother sought permission to relocate primarily because she feels lonely and isolated in the United States, and not to escape domestic violence … . The record also establishes that the father consistently exercises his right to visit the child twice a week, and that he desires to spend more time with her …. Further, there is no economic necessity for the proposed relocation because the mother has been steadily employed as a payroll analyst for more than six years.  Matter of Francis-Miller v Miller, 2013 NY Slip Op 07177, 2nd Dept 11-6-13

 

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