Self Help Should Not Be Used in Child Relocation Cases

A recent decision reached by the Appellate Division First Department in Koegler v. Woodward __A.D. 3rd___, highlights the danger in using self help to relocate a child to a distant state. Here, the mother was an educated and successful business woman. She was employed at Citigroup in an executive position. Although she lived in California when the child was born, and the father was employed in New York at Bear Stearns, she left her position in California and moved with the child to New York to accept a new position there. She resumed her relationship with the father, but sometime thereafter the couple separated. Later, she spoke with the father and told him that she wished to relocate to Texas with the child where she was raised and had a family. The father objected and the mother continued to reside in New York.

Two years later the mother learned that she was to loose her position with Citigroup, and she once again requested from the father (who had remarried) permission to relocate to Texas. He again refused and filed an emergency petition in the Family Court to prevent the move and sought joint legal custody. The court denied the mother's application to move to Texas, and awarded her primary residential custody on condition that she remain in New York and provide suitable housing for the child. During the court proceedings, the mother accepted a job at a bank in Dallas, and appealed the family court order.

In a split decision the appellate court sustained the findings of the lower court remarking that there was a sound and substantial basis in the record to deny the mother's request to relocate the child to Texas, based upon the best interests of the child. One of the reasons for this result was that the mother failed to inform the father or the court that she had accepted the job in Texas and had moved there with the child. It observed that it would be unlikely that the mother would be truthful and forthcoming with the father regarding the child's well being and activities given her lack of honesty when she kept from the father her acceptance of the Texas employment. It added it did not believe the mother would facilitate or foster a close relationship with her father.

Justice Tom and Roman dissented, holding that the mother would be better able to support herself and the child because of her new employment and the lower cost of living in Texas. and concluded that the move was predicated upon economic necessity that would warrant relocation.

The basis for deciding a relocation case is the best interest of the child. This standard can be used to arrive at most disparate conclusions. In the case discussed above, it is clear to me that a different result would have been obtained had the mother, in the first instance, filed a petition in the Family Court for permission to move. Doing so, would have eliminated any supposed evil motive to sever the father-child relationship or to deprive the father of meaningful access to the child. Offering the father liberal visitation if the move occurred might have also avoided this result.

Finally, the lesson to be learned from this decision is never to use self help and take the law into your own hands. Doing so will often result in the loss of residential custody.