Panel Grants Mother's Petition to Relocate to Mississippi
A woman struggling financially to support herself and her 11-year-old son in New York can move to Mississippi, a unanimous state appeals panel has held, reversing a family court referee's decision that the child must remain in New York because he benefits from his relationship with his father.
Appellate Division, First Department Justice David Saxe, writing for a five-judge panel, ruled Tuesday in Kevin McK. v. Elizabeth A.E., 10461, that Manhattan Family Court referee Ivy Cook was wrong to deny the mother's petition to relocate. Saxe said that the mother, identified as Elizabeth A.E., had shown that she could not support the child "beyond the subsistence level" in New York. Saxe was joined by justices Richard Andrias, David Friedman, John Sweeny and Rosalyn Richter.
Elizabeth was in a relationship with the father, Kevin McK., for 10 years, though the two never married. Their son, Lucas, was born in 2003, and the father moved out in November 2007.
In December 2007, Elizabeth filed a custody petition, and was awarded temporary custody in January 2008. Kevin later filed his own custody petition, while Elizabeth filed a petition to relocate herself and Lucas to Oxford, Miss., where her parents and other relatives live. Elizabeth said it had become impossible for her to support herself and Lucas in New York.
From 1989 to 2007, Elizabeth earned most of her money as a horseback riding instructor at the Claremont Riding Academy. Claremont closed in 2007, and Elizabeth lost her job. After that, she earned money teaching writing at the Jewish Community Center in Manhattan and from small editing jobs. She collected unemployment benefits for some periods after 2007, though she has not been eligible for benefits since 2010. Kevin's child support payments have been unreliable, according to Saxe's opinion. Elizabeth has testified that she had to borrow a significant amount of money from family to pay her rent and support Lucas.
Elizabeth has said that she has been offered year-round employment in Oxford, and that her expenses there would be 75 percent lower, allowing her and Lucas to live comfortably.
Kevin testified that he has no regular employment, relying on "various sources of income," and was unable to say how much money he made in past years or to estimate his monthly expenses. He said that he would soon receive a large inheritance, but that assertion was shown to be false during the Family Court proceedings, according to Saxe.
Nonetheless, the child's court-appointed counsel argued that he should not be relocated, pointing to the close relationship between Lucas and Kevin. Cook, the referee ultimately agreed, and expressed skepticism about Elizabeth's claim that she could not support herself and Lucas in New York. Cook pointed to the fact that Elizabeth had so far managed to pay her rent, maintain $10,000 in savings and have no credit card balance, and suggested that she had not been forthright about all her financial resources.
Saxe wrote that Cook's skepticism was not supported by the record.
"While a trial court's assessment of the evidence is entitled to deference, there is no sound or substantial basis in the record here for the Family Court's assessment of the mother's truthfulness regarding her earnings and her earning ability," Saxe said.