Mother Loses Custody After Moving to Take Job

, New York Law Journal


Justice Spain

Editors' Note: This article has been updated to reflect a Correction.

ALBANY - A lawyer who left Ithaca to accept a position clerking for a New Jersey judge has been stripped of custody of her three-year-old son after an appellate court agreed that she “clearly attempted to thwart and frustrate the father’s visitation.”

Michelle V. v. Brandon V., 516344, involving an attorney, an assistant professor of mechanical and aerospace engineering at Cornell University and the child they had during a brief marriage, came before an appellate panel after the trial judge held that the woman’s relocation violated and undermined their divorce agreement.

An Appellate Division, Third Department, panel unanimously agreed with Tompkins County Family Court Judge M. John Sherman's (See Profile) conclusion that the mother did not make a genuine effort to find a job in the Ithaca area, was "unduly combative and aggressive" toward the father and is less credible. They also rejected Michelle's assertion that the trial judge was biased.

"Overall, the court afforded the mother wide latitude as a pro se law school graduate, and our review of the record finds no support for her claim that the court's decision was affected by any bias," Justice Edward Spain (See Profile) wrote for the court.

According to Cornell University officials, Michelle was a student at a midwestern law school who was allowed to take courses in Ithaca. However, she is not a Cornell graduate, according to the university.

Records show that Michelle and Brandon were married in 2009 and had a child, Ethan, the following July, shortly before the mother started her third year of law school. They separated in 2011, and their joint custody separation agreement, later incorporated into a judgment of divorce, granted the mother physical custody, the father weekly parenting time and prohibited either from relocating without consent of the other or the court.

Just months after signing the agreement, Michelle accepted a job offer in New Jersey and relocated over the objections of the father. Sherman permitted Michelle to relocate temporarily and pending a hearing, after which he dismissed the pro se mother's petition and awarded sole custody to the father.

Michelle's appeal led to the Third Department's decision on Thursday.

Spain, stressing that the party seeking to relocate bears the burden of establishing that relocation is in the best interests of the child, and also noting the deference an appellate court owes to the trial judge, said there was ample basis in the record for Sherman's decision.

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