In a new decision by the Appellate Division, Third Department, the court ruled that a mother could move her 12 year old daughter to Florida, despite all parties agreeing that the father was a good father. This decision by the Appellate Division could potentially make it easier any parent with custody that is facing tough financial circumstances to relocate. In today's difficult financial climate this decision could have ramifications for many divorced New Yorker's.

New York Law Journal

Panel Upholds Decision to Move Child Away From Father to Florida

By Joel Stashenko
July 07, 2009

ALBANY - An appeals court has affirmed a Family Court determination that an upstate woman be allowed to move to Florida with her 12-year-old daughter over the objections of the girl's father, even though the appeals judges conceded the father demonstrated "unquestionable fitness" as a parent.

An Appellate Division, Third Department, panel ruled unanimously that Broome County Family Court Judge Peter P. Charnetsky (See Profile) properly exercised his discretion in the custody and visitation case, including weighing statements by Tami R. Winston's daughter that she would prefer to move away from New York with her mother.

"Notwithstanding the existence of evidence demonstrating that the father is a good parent, we conclude that a preponderance of the evidence exists to support Family Court's determination that relocation of the child with the mother was in the child's best interest," Justice Leslie E. Stein wrote for the panel in Winston v. Gates, 504284.

The Third Department decision appears on page 36 of the print edition of today's Law Journal.

Ms. Winston had petitioned Family Court starting in 2007 seeking to change the terms of the 2002 order of custody in which both she and Dennis L. Gates, who she never married, received joint legal custody of their daughter. The mother was the primary caregiver under the arrangement. According to the court, Ms. Winston had been subsequently diagnosed with a degenerative disc disease that forced her to stop working and to need help caring for her daughter.

Facing the exhaustion of her resources in New York, she asked Family Court for approval to move with her daughter to Florida, where her parents offered Ms. Winston free room and board and parenting help. She had only a boyfriend and a few relatives to depend on in Broome County.

Mr. Gates countered by seeking primary custody. He argued that he and his current wife could provide his daughter with a stable living arrangement in New York without the disruption of the move to Florida.

Judge Charnetsky ruled that the girl's primary residence should continue to be with her mother and that the father should get what the Third Department called "extensive" visitation rights of six weeks during the summer, one week at Christmas and one week during spring break. The judge required Ms. Winston to provide transportation for two of those visits as well as a cell phone to allow her daughter to have frequent direct conversations with Mr. Gates.

According to the appeals panel, both parents were "active participants" in raising their child and both had developed a strong relationship with her.

Still, the court found that the stronger bond had been developed between the mother and daughter.

"For example, the record reflected that the child generally turned to the mother for advice and when she wanted someone in whom to confide," Justice Stein wrote. "As Family Court observed, the mother, unlike the father, was knowledgeable with record to the child's medical diagnosis of attention deficit disorder and special educational needs and addressed concerns relating to those needs."

As far as the father was concerned, the panel noted that he had remarried and that his daughter would have had to share a room with another child had he been granted legal custody of the girl. Having as many as four other children to look after in New York, Mr. Gates would be left with "limited time" to spend exclusively with his daughter, the court decided.

The panel also noted that the girl's law guardian, Christopher A. Pogson of Binghamton, asked Judge Charnetsky to give substantial weight to the girl's stated preference to move with her mother rather than remain in New York with her father.

"Given her age, I thought the court should defer to her preference," Mr. Pogson said in an interview.

Mr. Pogson sa id the case was a difficult one because both parents were intimately involved in their daughter's upbringing and both were acting in the girl's best interests.

Mr. Gates' attorney, Richard J. Grace of Binghamton, said yesterday he was "very, very disappointed" with the ruling.

He said Judge Charnetsky and the Third Department judges both cited the familiar goal in custody and visitation decisions that the outcome should be in the "best interests of the child" without ever quite explaining how.

"The judge had never delineated why it was in the best interests of the child to relocate from everything she was familiar with to move to Florida, especially based on the fact that the father was so involved with her life," Mr. Grace said in an interview. "They [the Third Department judges] also simply use the catch phrase that is in the best interests of the child. One of our arguments was that it may be in the best interests of the mother to relocate, but it wasn't necessarily in the best interests of the child."

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