Monday, October 03, 2005

An unusual decision in custody case - New York An unusual decision in custody case

Even though this mother has previously demonstrated that she could not be expected to fully comply with her custody arrangement and that the parents have joint custody - this judge decided she could move the child out of the country provided she put up a bond guaranteeing monthly visitation.

The judge said, "Visitation with a parent is not the privilege of the parent but the right of the child. Both [the father and the boy] must have this right preserved by maximizing defendant's opportunity to maintain a positive and nurturing father-son relationship.” Which can apparently be accomplished through a monthly visit. Right.

Why not leave the child in New York and provide the mother with as liberal of a visitation schedule as she desires. Then she doesn’t have to come up with huge upfront costs, can elect to pay for her own travel expenses and the child does not have to be removed from his father and community simply since Mom’s new husband works in Canada…

Move away cases drive me crazy – if one parent wants to move there is certainly no compelling reason to keep them from doing so. However, their elective choice should not be an excuse to disrupt the parent/child relationship with their ex. If you want to move – go for it – but don’t expect to be able to take your child. Part of having children is sacrifice – you may have to sacrifice your desire to go wherever in order to support your child in the most loving and stable manner possible. Eventually the child will be old enough and out of the house where you can move wherever your little heart desires. In the meantime, deal with the fact that you have already handicapped your child by divorcing their other parent and try to do the best thing for them considering.

These remarriage move away cases are the epitome of selfish.


Jodi Ann Fischtein wanted her 11-year-old son to move to Canada with her.

But she and her ex-husband had joint custody of the boy, and the father wanted him to stay in New York.

After a 28-day trial in Central Islip, State Supreme Court Justice John Bivona made a rather novel decision.

The boy could go with his mother and new stepfather, who had been commuting to New York from Toronto. But Fischtein had to put up a $60,000 bond ensuring the father's visitation at least once a month, and pay his travel and hotel expenses.

"Visitation with a parent is not the privilege of the parent but the right of the child. Both [the father and the boy] must have this right preserved by maximizing defendant's opportunity to maintain a positive and nurturing father-son relationship," Bivona wrote in the recent decision.

However, he added the mother's "past conduct does raise concern as to whether she will cooperate and abide by the order of this court." Bivona directed that Fischtein post a $60,000 bond in the escrow account of the lawyer for her ex-husband, John Andrade, until her son becomes 18.

"This is very unusual," said Friedman. "I think the judge was concerned that the relocation he was allowing was out of the country and out of U.S. jurisdiction ... and there could be problems for the father jurisdictionally if there is a proceeding for enforcement."

In requiring the bond, Bivona cited instances in which Fischtein had interfered with Andrade's access to his son since the couple's divorce last year.

"Based on past history, plaintiff has dictated terms of visitation according to her whim," the judge wrote. Despite a separation agreement and both having joint custody, "plaintiff acts unilaterally."

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Anonymous Anonymous said...

Interesting that the mother thinks she's being punished. If she behaves herself, she gets the money back, so where's the punishment?

10:55 AM  
Anonymous Anonymous said...

What your missing here is that the child had never lived with the father, ever. Not for one day. He would visit the child once a week.

4:43 PM  
Anonymous Anonymous said...

Specifics are crucial before making biased & ignorant assumptions. But objectivity is a conflict of interest when whining on the pro-father bandwagon.
Also- "move away cases" ??? - the words that evade you-"international relocation."
Divorce & custody is a sad & stressful experience for all parties since we start out with the best of intentions. But alas, the ability to evolve afterwards is crucial. Furthermore, a stabile loving environment, an existing family unit and the best interest of the child were key factors. Knowledge is power.

1:16 AM  

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