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Decided on December 1, 2004
Family Court, Warren County

V-00432/03/04C
Michael Stern, Esq. for Petitioner Mary K. Moule, Esq., for Respondent. Kara M. Dopman, Esq., Law Guardian Timothy Breen, J.
By Judgment of Divorce the above-named parties were divorced by Judgment dated April 26, 2000 and entered on May 5, 2000 in the Warren County Clerk's Office. That Judgment incorporated the terms of a certain Separation Agreement between the parties dated January 29, 2000.
Petitioner Mother thereafter filed a petition for modification of the terms of the Divorce Judgment in this Court on March 27, 2003 which resulted in a mediated agreement between the parties and a Mediated Order entered on May 8, 2003.
On April 27, 2004, the Petitioner Mother again filed an application with this Court seeking to modify the existing custodial arrangement between the parties. She specifically asks this Court to grant her the right to relocate to Portland, Oregon with the children of the parties and to award the Respondent a fixed visitation schedule consisting of substantial holiday visitation and six consecutive weeks in the summer as well as other visitation times with the children.
Petitioner argues that she is engaged to a Portland, Oregon attorney, Michael Esler, and plans to marry this summer. Petitioner currently works for Mr. Esler's law firm out of Portland, Oregon and can advance her career if she relocates to Portland. Petitioner claims that her increased earning potential will not require any additional hours away from her home. She states that permitting relocation will not affect the Respondent's visitation and access to the children since the proposed visitation schedule provides Respondent with approximately the same amount of time as per the existing Visitation Order. In addition, she notes that the Respondent engages in extensive elective travel which would enable him to incorporate visits with the children. She believes that the children's living conditions as well as both the economic and social opportunities for the children would be enhanced by permitting such relocation.
The home where the children will be residing is 5500 square feet in area and has 7 bedrooms and is situated on nearly three acres of land. The children will have a membership in a local athletic club and will have access to the many cultural and outdoor sites available in the greater Portland [*2]area. Petitioner further claims that the school system where the children will be enrolled is excellent, due in part to its larger enrollment and offers more extracurricular activities for the children.
The blended family that the children will join consists of Mr. Esler's daughter and son, Megan and Brian age 19 and 17 who spend 100% of their time with their father and 12-year-old Joe who spends 70% of his time with his father.
The Respondent Father is opposed to Petitioner's application on the grounds that such a move will seriously impact on his current close relationship with his children. The matter remained in a contested posture with a trial commencing on August 24, 2004, and continuing on November 16 and November 19, 2004.
APPLICABLE LAW
As set forth in the landmark case of In the Matter of Tropea V. Tropea, 87 NY2d 727 (1996), the New York Court of Appeals has held that each relocation case must be decided on its own merits with predominant emphasis on what outcome is most likely to preserve the child's best interests. Factors for courts to consider include each parent's reason for seeking or opposing the move; the quality of the relationship between the child and each parent; the impact of the move on the quality and quantity of future contact with the non custodial parent; the degree to which the custodial parent and the child's lives may be enhanced economically and educationally by the move; the feasibility of preserving the relationship between the remaining parent and the child through suitable alternative visitation arrangements.
The parent seeking to relocate has the burden of proof to establish that the move is in the child's best interest. The relocating parent must show planning for the child's schooling in the new area and must show proof of the increased economic advantages. Proof must be offered to the Court that the child's life will be enhanced by the move. The Court is required to consider the negative impact on the relationship of the child and the non custodial parent, particularly in situations where the child and non custodial parent have a close relationship with frequent contact. The continued presence of an extended family in the home area is another factor to be considered. In assessing the negative impact on the non custodial parent, the Court must consider the distance of the move as well as the length and cost of travel time.
Focusing specifically on Appellate Division, Third Department cases, the Court consistently reiterates that the burden of proof is on the parent seeking to relocate. The parent must show that the relocation serves the child's best interests. Brown v McGuire, 245 AD2d 895.
There are a number of cases in which relocation has been denied by the Appellate Division, Third Department. In Mendoza v. Adamson, 238 AD2d 737, relocation was denied by the Court since the non custodial father was very interested in the child, had an extended family which was intimately involved with the child, and offered a stable and beneficial environment for the child. The custodial mother who wished to relocate failed to offer testimony regarding child care and [*3]educational opportunities if the move were permitted. The non custodial father testified that the move would likely destroy his relationship with the child because of the limited financial resources of both parents.
In Burr v. Emmett, 249 AD2d 614, the Court denied relocation on the grounds that marriage and pursuit of a career were insufficient to defeat the negative impact of the prospective move on the child's close relationship with the father and the presence of extended family in New York State.
In Yelverton v. Stokes, 247 AD2d 719, relocation of the mother was not permitted, although the mother as custodial parent married a man with a lucrative job in a distant state with no similar possibilities in New York State. The non custodial father had alternating weekends and two days of weekday visitation with the child and a close relationship with the child. The custodial Mother failed to plan for the child's schooling in California and her new husband was inexperienced with children.

FINDINGS OF FACT
The Petitioner called the Respondent Father; the Petitioner's fianc

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