Decisions of Interest

Absentee Mother Loses Custody

Because a mother who had voluntarily lived apart from her daughter for several years could offer only vague assertions as to why her daughter's best interests would be served by taking her from her father and moving her to Atlanta, the father was granted custody and the mother was given liberal visitation rights. Dennis A N. Jr. v. Keisha A J., V-03531-09 (Fam. Ct., Suffolk Cty. 8/17/09) (Lynaugh, J.).

The petitioner father and respondent mother, who had never been married to one another, each sought custody of their daughter. The child had originally lived with her mother at her maternal grandmother's home on Long Island. However, at the time the father's petition was filed, the mother had not lived with her child for three years, but had left her in her own mother's care. During part of this time, the mother lived nearby, in Brooklyn. Later, she moved with her other child to Atlanta, to take a position on the Atlanta police force. During this entire period, the father remained involved in his daughter's life. In July 2008, the mother agreed to allow the child to move in with her father, with whom she had a good relationship. When the father soon thereafter petitioned for custody, however, the mother objected and sought permission to relocate the child to Atlanta.

The law guardian recommended allowing the mother to move the child to Atlanta because she wanted to live with her mother and because the law guardian felt the move to Atlanta would give the child the “emotional nurturing” she needed. The court noted that, among the factors to be considered in ascertaining a child's best interests are: 1) The demonstrated parenting ability and relative fitness of the parties; 2) The love, affection, and nurturing given by each party to the child, the emotional bond between the child and each party, and the willingness and ability of each party to put the child's needs ahead of his/her own; 3) The length of time the child has lived in a stable and satisfactory environment, the desirability of maintaining the current custodial residence, and the stability of the proposed custodial residence; 4) The ability of each party to provide for the child's emotional and intellectual development; 5) The financial resources available to each party and the ability of each party to provide the child with food, clothing, housing, and medical care; 6) The individual needs and expressed desires of the child and the degree to which the custodial determination would either continue or interrupt the various elements of the child's day-to-day life; 7) The willingness and ability of each party to facilitate and encourage a close and optimum relationship between the child and the other party; and 8) Any other factor deemed relevant to a particular custody dispute; e.g., the need of the child to be with siblings, and/or the proposed or de facto relocation of one of the parents and its impact on the child. Tropea v. Tropea, 87 NY2d 727 (1996).

The court found that, rather than establishing any of the Tropea criteria, the mother presented “a proposed relocation based solely upon her assumed and vague perceptions of a better, or perhaps even just a preferred, life style. This is certainly an inadequate basis upon which to uproot a young girl who has an established, on-going, meaningful, and emotionally nurturing relationship with her father.” It also rejected the law guardian's recommendation, noting that the attorney had not specifically addressed the issue of the lack of stability the mother had historically provided for the child. The court found that the mother, by moving to Atlanta to accept a job there instead of taking a similar position with the New York City police department for slightly lower pay, had disregarded her child's best interests and had instead concentrated on her own. Conversely, the father had always tried to provide the child with a structured, stable and loving home. He is married and has a large and comfortable home, and the child has a good relationship with her stepmother and stepsiblings. With these factors in mind, the court determined that giving custody of the child to the father was in her best interests, and liberal visitation was granted to the mother.

'Last Shared Intent' Trumps Mom's Wish to Raise Boy in Ecuador

The U.S. District Court for the Eastern District of New York declined to order the return of a boy to his mother's homeland because the place of the parents' last shared intent concerning where the boy would be raised was the United States. Ordo'ez v. Tacuri, 09-CV-1571 (E.D.N.Y., 9/10/09) (Block, J.).

The petitioner mother, who currently lives in Ecuador, gave birth to her youngest son, James, in the United States in 2006. At that time, she was an illegal alien. The family later moved to Ecuador to pursue legal immigrant status for the mother and her two older Ecuadorian children. Both parents agreed at the time of that move that their stay in Ecuador would be a temporary one. In fact, they left most of their belongings in storage, in Queens. The father soon returned alone to the United States to, among other things, pursue legal residency status for his family. He later returned to Ecuador and, with his wife's permission, took James back with him to the United States, for a period of eight months. The father and son visited Ecuador for about a month, beginning in September 2007, at which time the father learned that his wife had been unfaithful. He and James returned to New York in mid-October 2007, and he soon abandoned his attempts in securing his wife's legal return to the United States. When James's mother realized this, toward the end of 2007, she sued for custody of James through on Ecuadorian court. In 2008 that court ordered the father to “turn over [James] forthwith.” Next, the mother filed the subject petition for James's return to Ecuador, pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 24, 1980, T.I.A.S. No. 11670, 1343 U.N.T.S. 89, reprinted in 51 Fed. Reg. 10, 494 (Mar. 26, 1986) (the Convention), implemented by the International Child Abduction Remedies Act, 42 U.S.C. ' 11601. et seq. (2000).

Both the United States and Ecuador are signatories to the Convention, which under certain circumstances requires return of a child to his or her habitual country of residence.

The main question in the Ordo'ez v. Tacuri case was which country ' the United States or Ecuador ' was James' “habitual state of residence” at the time that he was removed from Ecuador to the United States. Since the Convention and its implementing legislation do not define “habitual state of residence,” the court here turned to the Second Circuit's guidance in Villegas Duran v. Arribada Beaumont, 534 F3d 142 (2d Cir. 2008). The Villegas court counseled as follows: “First, the court should inquire into the shared intent of those entitled to fix the child's residence (usually the parents) at the latest time that their intent was shared. In making this determination the court should look, as always in determining intent, at actions as well as declarations. Normally the shared intent of the parents should control the habitual residence of the child. Second, the court should inquire whether the evidence unequivocally points to the conclusion that the child has acclimatized to [a] new location and thus has acquired a new habitual residence, notwithstanding any conflict with the parents' latest shared intent.”

Absentee Mother Loses Custody

Because a mother who had voluntarily lived apart from her daughter for several years could offer only vague assertions as to why her daughter's best interests would be served by taking her from her father and moving her to Atlanta, the father was granted custody and the mother was given liberal visitation rights. Dennis A N. Jr. v. Keisha A J., V-03531-09 (Fam. Ct., Suffolk Cty. 8/17/09) (Lynaugh, J.).

The petitioner father and respondent mother, who had never been married to one another, each sought custody of their daughter. The child had originally lived with her mother at her maternal grandmother's home on Long Island. However, at the time the father's petition was filed, the mother had not lived with her child for three years, but had left her in her own mother's care. During part of this time, the mother lived nearby, in Brooklyn. Later, she moved with her other child to Atlanta, to take a position on the Atlanta police force. During this entire period, the father remained involved in his daughter's life. In July 2008, the mother agreed to allow the child to move in with her father, with whom she had a good relationship. When the father soon thereafter petitioned for custody, however, the mother objected and sought permission to relocate the child to Atlanta.

The law guardian recommended allowing the mother to move the child to Atlanta because she wanted to live with her mother and because the law guardian felt the move to Atlanta would give the child the “emotional nurturing” she needed. The court noted that, among the factors to be considered in ascertaining a child's best interests are: 1) The demonstrated parenting ability and relative fitness of the parties; 2) The love, affection, and nurturing given by each party to the child, the emotional bond between the child and each party, and the willingness and ability of each party to put the child's needs ahead of his/her own; 3) The length of time the child has lived in a stable and satisfactory environment, the desirability of maintaining the current custodial residence, and the stability of the proposed custodial residence; 4) The ability of each party to provide for the child's emotional and intellectual development; 5) The financial resources available to each party and the ability of each party to provide the child with food, clothing, housing, and medical care; 6) The individual needs and expressed desires of the child and the degree to which the custodial determination would either continue or interrupt the various elements of the child's day-to-day life; 7) The willingness and ability of each party to facilitate and encourage a close and optimum relationship between the child and the other party; and 8) Any other factor deemed relevant to a particular custody dispute; e.g., the need of the child to be with siblings, and/or the proposed or de facto relocation of one of the parents and its impact on the child. Tropea v. Tropea , 87 NY2d 727 (1996).

The court found that, rather than establishing any of the Tropea criteria, the mother presented “a proposed relocation based solely upon her assumed and vague perceptions of a better, or perhaps even just a preferred, life style. This is certainly an inadequate basis upon which to uproot a young girl who has an established, on-going, meaningful, and emotionally nurturing relationship with her father.” It also rejected the law guardian's recommendation, noting that the attorney had not specifically addressed the issue of the lack of stability the mother had historically provided for the child. The court found that the mother, by moving to Atlanta to accept a job there instead of taking a similar position with the New York City police department for slightly lower pay, had disregarded her child's best interests and had instead concentrated on her own. Conversely, the father had always tried to provide the child with a structured, stable and loving home. He is married and has a large and comfortable home, and the child has a good relationship with her stepmother and stepsiblings. With these factors in mind, the court determined that giving custody of the child to the father was in her best interests, and liberal visitation was granted to the mother.

'Last Shared Intent' Trumps Mom's Wish to Raise Boy in Ecuador

The U.S. District Court for the Eastern District of New York declined to order the return of a boy to his mother's homeland because the place of the parents' last shared intent concerning where the boy would be raised was the United States. Ordo'ez v. Tacuri, 09-CV-1571 (E.D.N.Y., 9/10/09) (Block, J.).

The petitioner mother, who currently lives in Ecuador, gave birth to her youngest son, James, in the United States in 2006. At that time, she was an illegal alien. The family later moved to Ecuador to pursue legal immigrant status for the mother and her two older Ecuadorian children. Both parents agreed at the time of that move that their stay in Ecuador would be a temporary one. In fact, they left most of their belongings in storage, in Queens. The father soon returned alone to the United States to, among other things, pursue legal residency status for his family. He later returned to Ecuador and, with his wife's permission, took James back with him to the United States, for a period of eight months. The father and son visited Ecuador for about a month, beginning in September 2007, at which time the father learned that his wife had been unfaithful. He and James returned to New York in mid-October 2007, and he soon abandoned his attempts in securing his wife's legal return to the United States. When James's mother realized this, toward the end of 2007, she sued for custody of James through on Ecuadorian court. In 2008 that court ordered the father to “turn over [James] forthwith.” Next, the mother filed the subject petition for James's return to Ecuador, pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 24, 1980, T.I.A.S. No. 11670, 1343 U.N.T.S. 89, reprinted in 51 Fed. Reg. 10, 494 (Mar. 26, 1986) (the Convention), implemented by the International Child Abduction Remedies Act, 42 U.S.C. ' 11601. et seq. (2000).

Both the United States and Ecuador are signatories to the Convention, which under certain circumstances requires return of a child to his or her habitual country of residence.

The main question in the Ordo'ez v. Tacuri case was which country ' the United States or Ecuador ' was James' “habitual state of residence” at the time that he was removed from Ecuador to the United States. Since the Convention and its implementing legislation do not define “habitual state of residence,” the court here turned to the Second Circuit's guidance in Villegas Duran v. Arribada Beaumont , 534 F3d 142 (2d Cir. 2008). The Villegas court counseled as follows: “First, the court should inquire into the shared intent of those entitled to fix the child's residence (usually the parents) at the latest time that their intent was shared. In making this determination the court should look, as always in determining intent, at actions as well as declarations. Normally the shared intent of the parents should control the habitual residence of the child. Second, the court should inquire whether the evidence unequivocally points to the conclusion that the child has acclimatized to [a] new location and thus has acquired a new habitual residence, notwithstanding any conflict with the parents' latest shared intent.”