The Appellate Division of the First Department of the State of New York, an appeals court, recently overruled a decision of Manhattan Family Court Referee Ivy Cook which denied a mother’s request to relocate herself and her child to Mississippi. In her application the mother claimed that she could not support the child “beyond the subsistence level” in the State of New York.
History of the Relationship
The mother, Elizabeth A.E., had a relationship with a Kevin McK. The relationship lasted ten years. The parties never married. A child, Lucas, was born in 2003. In December 2007, the mother filed a custody petition in the Family Court of New York County. She was awarded temporary custody. Thereafter, the mother brought a petition to relocate to Oxford, Mississippi. In her petition she claimed both her parents and other relatives lived there and she would be better able to support her family if she would be allowed to relocate. She claimed it was impossible for her to support herself and Lucas in the State of New York.
Mother’s Employment History
From 1989 to 2007, the mother was a horseback riding instructor at the Claremont Riding Academy. The riding academy closed in 2007. Thereafter she worked in a Jewish Community Center in Manhattan teaching riding skills. She also collected unemployment benefits for some period of time from 1989 through 2007. She claimed the child support payments being received from Kevin were unreliable and she was forced to borrow money from friends and family members to pay her rent and support her son.
Employment in Mississippi
Elizabeth established she had a position waiting for her in Oxford, Mississippi. In her petition she claimed her expenses would be 75% lower if she lived in Mississippi. Kevin claimed that he was unable to find regular employment and thus could not establish he could pay child support on a regular basis.
Attorney for the Child’s Position
The attorney for the child took the position the child should not be relocated. He claimed Lucas had a close relationship with his father. He also disputed the mother’s claim she could not support herself in New York.
Appeals Court’s Decision
The Appellate Court in its decision stated “the supposition that the mother could not find or actually did find other remunitive employment was not only unsupported but was indeed not contradicted by her receipt of various public assistance benefits such as medicaid and foodstamps.” The judge went on further to say this was “in sharp contrast to the father’s evasive testimony and evidence with regard to his finances the mother made a forthright showing of exactly how she supported herself and the child.”
In the end, the court allowed the mother to relocate based on the determination this would be advantageous for both her and her son.
Elliot S. Schlissel is a divorce lawyer representing clients throughout the metropolitan New York area.