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In re McK

Supreme Court of New York, First Department

October 1, 2013

In re Kevin McK., Petitioner-Respondent,
v.
Elizabeth A.E., Respondent-Appellant.

Respondent appeals from the order of the Family Court, New York County (Ivy I. Cook, Referee), entered on or about April 10, 2012, which, after a hearing, to the extent appealed from, denied her petition to relocate to Mississippi with the parties' child.

O'Melveny & Myers LLP, New York (Brad M. Elias and Andrew J. Frackman of counsel), for appellant.

Kevin McKeown, respondent pro se.

Andrew J. Baer, New York, attorney for the child.

Richard T. Andrias, J.P., David Friedman, John W. Sweeny, David B. Saxe, Rosalyn H. Richter, JJ.

SAXE, J.

In this relocation case, where respondent mother, Elizabeth E., seeks permission to move with the parties' child to Oxford, Mississippi, we are once again confronted with the problem of balancing a child's need for the ongoing presence of both parents in his daily life, with the custodial parent's proven inability to support herself and the child beyond the subsistence level here in New York.

Facts

The parties never married, but were intimately involved for 10 years, during which time their son, Lucas, was born, on January 6, 2003. The father, Kevin McK., moved into the mother's apartment a few months prior to the child's birth, and moved out in November 2007, when the child was about 4½ years old. The mother filed a custody petition in December 2007, and was awarded temporary custody on January 8, 2008; the father filed a custody petition shortly thereafter. Later that year, the mother filed a second petition, seeking to modify the temporary custody order to permit her to relocate with the child to Oxford, Mississippi.

Trial on the issues of custody and relocation commenced on or about November 18, 2009, and was conducted on 13 days over the course of 2½ years. The mother testified that from approximately 1989 through 2007, her primary source of income was from her employment at the Claremont Riding Academy as a horseback riding instructor, earning approximately $20 per hour, plus tips and commissions. Between 2003 and 2007, she earned approximately $20, 000 per year from her work at Claremont, sometimes closer to $30, 000. During that period, she also earned approximately $5, 000 from a book she published, $2, 400 from teaching writing classes at the Jewish Community Center (JCC), in Manhattan, and approximately $5, 000 per summer teaching at a riding camp in Mississippi.

However, in April 2007, Claremont closed, and the mother lost her job. Although she sought employment as a riding instructor in the New York metropolitan area, she was only able to find work one day per week, at a stable in Westchester, with a round-trip commute of approximately four hours; she found that the cost of the commute exceeded her earnings from the job. She was unsuccessful in her attempts to find other riding jobs or other writing assignments. She still taught a small number of writing classes at the JCC, earning $4, 500 between 2007 and 2011, and found some small editing jobs from which she earned less than $1, 000 in total.

From the time Claremont closed in April 2007 until November 2007, and again in 2009 and 2010, the mother collected $300 per week in unemployment benefits, but she has not been eligible for those benefits since June 2010. In addition, between June 2010 and June 2011, when the mother was entitled to $732 per month in child support from the father, payments were almost always late, and several payments were missed entirely between November 2010 and February or March 2011. Support arrears in excess of $6, 000 had accrued by June 2011, which the father paid off after a one year delay, only after the mother filed a violation petition. He has not made any further support payments since then.

Due to the missed child support payments and increases in her rent since 2007, the mother testified that she was barely able to make ends meet, so that to cover her expenses, she had borrowed $10, 000 from a friend, as well as $1, 800 from the Author's League Fund, and some smaller amounts from her parents, as well as drawing down on her savings, which decreased from approximately $25, 000 to $10, 000. Essentially, she has supported herself and the parties' child on a combination of her meager earnings, irregular child support payments, unemployment benefits, food stamps, loans from friends and family, and by depleting her savings.

The mother's tax returns were admitted into evidence. According to the returns, in 2007, she earned approximately $31, 486; in 2008, approximately $8, 074; in 2009, ...


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