Lazarevic v. Fogelquist

175 Misc. 2d 343, 668 N.Y.S.2d 320, 1997 N.Y. Misc. LEXIS 640
CourtNew York Supreme Court
DecidedDecember 12, 1997
StatusPublished

This text of 175 Misc. 2d 343 (Lazarevic v. Fogelquist) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lazarevic v. Fogelquist, 175 Misc. 2d 343, 668 N.Y.S.2d 320, 1997 N.Y. Misc. LEXIS 640 (N.Y. Super. Ct. 1997).

Opinion

OPINION OF THE COURT

Eileen Bransten, J.

In this proceeding, Petitioner Father, Milo Lazarevic (hereinafter Petitioner), seeks to modify custody and enjoin the parties’ 6x/2-year-old child, Adrian Fogelquist Lazarevic (hereinafter Adrian), from relocating with the custodial parent, Respondent Mother, Jan Fogelquist (hereinafter Respondent), to the Aramco compound in Dhahran, Saudi Arabia.1

Respondent opposes the petition to modify custody and requests permission to allow Adrian to permanently reside in Saudi Arabia with Respondent, Respondent’s husband, Eleftherios Lefcochilos (hereinafter Stepfather), and Adrian’s two half-siblings, Sabrina, who is four years old, and Max, who is two years old (hereinafter siblings).

The difficult question before the court is whether it is in Adrian’s best interest to award Petitioner custody and compel Adrian to remain in New York with Petitioner or to maintain custody with Respondent and allow Adrian to relocate to the Aramco compound in Dhahran, Saudi Arabia, with Respondent, Stepfather and siblings.

It is axiomatic that disputes over relocation can be most problematic, emotional and difficult for all concerned. A relocation to Saudi Arabia, by its very nature, would mean a dramatic change in Adrian’s life and in his relationship with his Father, the noncustodial parent. Such a distant relocation has the potential, as the Petitioner fears, to interfere with or even defeat future meaningful involvement between Adrian and his Father. The decision is made even more difficult when it was clear from all of the testimony at this trial that both the Petitioner and Respondent are loving, caring and giving parents and that Adrian has a deep loving, committed and caring relationship with both of his parents.

[345]*345The unrefuted testimony at the hearing is that, regardless of the outcome of this matter, Respondent will be leaving New York City with her two younger children, Adrian’s siblings, to join the Stepfather who has already moved to Dhahran to pursue financially rewarding employment with Arameo. Accordingly, although the court finds that maintaining the status quo would undoubtedly be in Adrian’s best interest and is something that Adrian himself would desire, to compel such an outcome is regrettably outside this court’s power. While the court has the power to enjoin Adrian from relocating to Saudi Arabia upon a finding that custody with Petitioner is in Adrian’s best interest, the court may not enjoin Respondent from relocating without Adrian.

Although relocation to Saudi Arabia will result in a dramatic change in Adrian’s life, to deny relocation would likewise result in a dramatic change in that Adrian’s life-long relationship with his Mother and relationship with his Stepfather and siblings would end. After an exhaustive review of the testimony heard at trial, the court concludes that it is in Adrian’s best interest to be allowed to relocate with Respondent, Stepfather and his two siblings to Saudi Arabia provided that all the conditions set forth below are met in full prior to the relocation.

In accordance with the Court of Appeals decision in Matter of Tropea v Tropea (87 NY2d 727 [1996]), which replaced the previous “exceptional circumstance” test with a full, general and detailed inquiry as to what is in Adrian’s best interest, the court has reviewed all of the evidence presented in the case to determine whether it is in Adrian’s best interest to move to Saudi Arabia or in his best interest to allow Petitioner to become the custodial parent and compel Adrian to live with his Father in New York.

The court in making its decision has considered and balanced all of the many different and relevant factors which are appropriately considered in determining which of these outcomes is in Adrian’s best interest, to wit: (1) the quality of the alternate home environments; (2) a comparison of the parental guidance which would be provided to the child if relocation were granted and if relocation were denied; (3) the financial status and ability of each parent to provide for the child; (4) the ability of each parent to provide for the child’s emotional and intellectual development; (5) the desires of the child with appropriate weight given to the child’s young age and maturity; (6) the quantitative and qualitative impact upon the child of losing existing contacts with the Father and the [346]*346community or with the Mother, Stepfather and siblings; (7) the quantitative and qualitative impact upon the noncustodial parent of losing existing contacts with the child; (8) the feasibility of devising a visitation schedule or other arrangement that will enable the noncustodial parent to maintain a meaningful parent-child relationship; (9) the difficulty, advantage and disadvantage that the child will experience in residing and adapting to a remarkably new and different place and culture; (10) the economic necessity or lack thereof for wanting to relocate; (11) the existence of good faith in requesting and opposing the relocation and whether Respondent’s reasons for moving are valid and sound; (12) Respondent’s attempts to obtain a “fresh start”, i.e., whether relocation would strengthen and stabilize the new postdivorce family unit; and (13) the continued or exacerbated hostility between Petitioner and Respondent if relocation were permitted and if relocation were denied. (See generally, Eschbach v Eschbach, 56 NY2d 167 [1982]; Matter of Tropea v Tropea, 87 NY2d 727, supra.)

DISCUSSION

Petitioner argues that Respondent’s request to relocate places her own self-interest over and above Adrian’s needs. He states that Respondent is a qualified medical doctor and a Harvard-trained psychiatrist who has the ability to support herself and her family in New York City if she so desired. Petitioner and the Law Guardian both note that with only part-time efforts as a psychiatrist, Respondent earned between $25,000 and $30,000 in 1995. Furthermore, they propose that if Respondent wanted to establish a private practice in her home so that she could be near her younger children, she could do so without disrupting her family and moving to Saudi Arabia.

Petitioner dedicated much of his efforts at trial to establish that “exceptional circumstances” do not exist in Respondent’s desire to relocate Adrian to Saudi Arabia. Indeed, Petitioner successfully demonstrated that with reasonable efforts Stepfather should have been able to obtain employment in New York State or in a location which would not have such a potentially devastating impact upon Petitioner’s continued visitation with Adrian. Alternatively, Petitioner showed that Respondent has the training and education to supplement, even if she chose to work on a limited basis, any reduction in income that Stepfather would have incurred in obtaining alternative employment had Respondent decided to stay in New York.

[347]*347Accordingly, under the pre-Tropea standard, as previously adopted in cases such as Elkus v Elkus (182 AD2d 45 [1st Dept 1992] ) and Matter of Radford v Propper (190 AD2d 93 [2d Dept 1993] ), Petitioner would have succeeded in blocking this proposed long distant relocation. Respondent’s own testimony indicates that her desire to relocate is entirely voluntary and motivated by her goal (with all the potential benefits it entails as described below) of living in the Aramco compound in Saudi Arabia.

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Related

MATTER OF TROPEA v. Tropea
665 N.E.2d 145 (New York Court of Appeals, 1996)
Eschbach v. Eschbach
436 N.E.2d 1260 (New York Court of Appeals, 1982)
Elkus v. Elkus
182 A.D.2d 45 (Appellate Division of the Supreme Court of New York, 1992)
Radford v. Propper
190 A.D.2d 93 (Appellate Division of the Supreme Court of New York, 1993)
Schindler v. Schindler
227 A.D.2d 634 (Appellate Division of the Supreme Court of New York, 1996)
Cate v. LaValley
229 A.D.2d 945 (Appellate Division of the Supreme Court of New York, 1996)
Gillard v. Gillard
241 A.D.2d 966 (Appellate Division of the Supreme Court of New York, 1997)

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Bluebook (online)
175 Misc. 2d 343, 668 N.Y.S.2d 320, 1997 N.Y. Misc. LEXIS 640, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lazarevic-v-fogelquist-nysupct-1997.