Many of us watch soap operas, dramas centered around medical issues or dramas centered around legal issues, and we wonder how accurate they are and how much research the writers really did before they wrote about the particular issue. If you’ve ever watched these shows with people that actually work in the profession, you’ve most likely seen them get extremely frustrated while watching these shows. This happened to me while I was watching Days of Our Lives a couple of weeks ago, when one of the characters went to a lawyer for advice regarding a custody and relocation issue, one of the most complicated issues in Family Law.
For those of you that do not watch the show, I will give a very brief rundown of what happened: Brady and Teresa found out they had a son together. Brady and Teresa are not in a relationship. Brady is in love with Melanie. Teresa informed Melanie that if she did not get out of town, she will take her son and move to California. Brady went to a lawyer to find out if he could stop Teresa from doing this. The lawyer (who admitted this was not his area of expertise) informed him that given Brady’s history of drug abuse, his grandfather’s history of illegal activities and past actions towards Teresa’s mother, and notwithstanding Teresa’s history of drug abuse and her attempt to kill Brady’s Father (which was not on record), it was very unlikely a judge would keep Teresa from leaving town with the baby. Based upon this very wrong advice, Melanie left town and Brady, so Teresa would stay in town with the baby.
First, relocation is NEVER an easy issue to determine. A court is required to balance the desires of the custodial parent to move for whatever reason he or she presents, against the desires of the non-custodial parent to continue to be close with their child, parent them on a regular basis and be involved in their life. It is the parent requesting the move that has the burden of presenting the Court with evidence that this move is in the child’s best interests NOTWITHSTANDING the fact that the move would prevent the non-custodial parent from seeing the child on a regular basis. There are several factors that a Court considers when making this determination pursuant to the Court of Appeals case Tropea v. Tropea 87 NY2d (1996). These factors are included but not limited to:
1. Each parent’s reason for seeking or opposing the move;
2. The quality of the relationship between the child and the custodial and noncustodial parent;
3. The impact of the move on the quantity and quality of future contact with the noncustodial parent;
4. The degree to which the custodial parent’s and child’s life may be enhanced economically, emotionally and educationally by the move;
5. The feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements.
The first thing the court investigates is why the custodial parent wants to move, and why the other parent is opposing the move. There are only a few scenarios that are considered “valid” reasons for wanting to relocate away from the non-custodial parent. These are included but not limited to: financial reasons (such as being unable to support oneself in the current location and having better economic opportunities in the place where the parent wants to relocate), more emotional support from friends and family, and remarriage where the spouse is established in a different state/jurisdiction.
In the above scenario, Teresa’s true motive for wanting to move is because she does not want Brady with another woman. This would immediately be rejected by a Court. Even if this were not revealed, and she informed the Court that she wanted to move so she could have her parents’ help in raising the child, this motive would most likely not be enough to grant permission to move. First, Teresa has a large extended family surrounding her where she currently lives. The only family Teresa has in California are her parents. Any good lawyer would bring out the fact that Teresa’s relationship with her parents is not a close one and Teresa was all but estranged from her parents until this child was discovered, raising a question about the environment in which the baby would be raised. Moreover, the child would miss out on being surrounded by extended family who love him, on both Teresa’s and Brady’s side, which is contrary to his best interests.
As for financial reasons, Brady and his family are worth millions, and Brady has offered to support both Teresa and the baby and pay all of their living expenses. Moreover, Teresa has a steady, full time job (most likely with benefits) where she currently lives, and has no job waiting for her in California. Thus, she cannot claim that she does not have the means to stay and has better economic opportunities in California.
The move would not provide the child with an intact family (i.e. Teresa is not moving in order to marry someone established in California). Thus, the move would in no way enhance Teresa’s or the child’s life economically or emotionally (educationally is not yet a factor as the child is an infant). In fact, given Teresa’s relationship with her parents and her past troubles with the law when living in California, there is a good chance both Teresa and the child’s quality of life would be downgraded if the move were permitted!
As for prong number 2, 3 and 4, a Court is much more likely to permit a move when the non-custodial parent is not a big part of the child’s life and/or there is a reasonable proposal for alternative parenting time to make up for the fact that the parent and child can no longer be together on a regular basis. This usual includes the non-custodial parent having the child for all school breaks, vacations and the entire summer.
In this case, the child just came into the parents’ life about a week ago, and neither parent has even had an opportunity to bond with the child. It cannot be said that the quality of one parent’s relationship with the child is better than the other’s. In fact, the impact this move would have would be even more detrimental to the child given that the child has not yet had an opportunity to bond with Brady, and this would make it exceedingly more difficult for him to do so. Of course, no proposal for alternative parenting time or ways to keep in contact were even discussed.
As complicated as relocation cases tend to be, it seems this one is as close to a guarantee as one could get that relocation would not be permitted. The facts Brady was told would be considered are wholly irrelevant to the issue of relocation, and are not even that relevant to the issue of custody (an entirely different analysis).
The number one lesson to take away from this (other than “don’t take legal advice from TV shows) is, when it comes to an issue as intricate as relocation, it is imperative to have a lawyer that has extensive experience in this area of law. The second this lawyer told Brady that this is not his area of law, Brady should have found an experienced and competent family lawyer to advise him.
NOTE: This blog is a professional blog concerning issues relating to Matrimonial and Family Law. Please limit all comments to the legal issues discussed.
–Rachel S. Silberstein is a Matrimonial and Family lawyer in New York City. To learn more, please visit her website at www.rssfamilylaw.com