A Full-Service Law Firm


A recent decision by the Appellate Division Second Judicial Department raises new issues concerning the enforcement of radius clause provisions.

In this case, the parties executed a custody stipulation that was "so-ordered" and incorporated, but not merged, into the Judgment of Divorce. The parties agreed to joint custody of their two children with the mother as the primary residential custodial parent. The stipulation permitted the mother to relocate within 55 miles of her current residence without the express written permission of the father or a court order. More than three years after the initial stipulation was executed, the mother informed the father that she and the children were relocating to Connecticut. The proposed relocation was within the 55 mile radius. At that point, the father filed a petition in Family Court to modify the "so-ordered" stipulation based on the change in circumstances and to enjoin the mother from relocating with the children and to appoint an attorney for the children. The father argued that although the relocation was within the 55 miles of the mother’s current residence, it would not be in the children’s best interests. The mother moved to dismiss the petition arguing that the parties stipulation permitted the relocation. The Family Court decided that the stipulation was dispositive (related to or bringing about settlement) of the issue and granted that branch of the mother’s motion to dismiss the father’s petition.

The Appellate Division reversed the order on that branch of the mother’s motion, which dismissed the father’s petition and then remitted the matter to the Family Court Westchester County for a hearing on the father’s petition. The Appellate Court indicated that "no agreement of the parties can bind the Court to a disposition other than that which a weighing of the all the factors involved shows to be in the children’s best interest." Although the parties had agreed in a stipulation that the mother could relocate to within 55 miles of her residence, the Court decided that the agreement is not dispositive. The father had made an evidentiary showing in Family Court that the mother’s proposed move might not be in the best interest of the children. Therefore, the Court considered the stipulation to be only one factor to be weighed along with all the other factors at a hearing to determine whether the relocation is in the best interest of the children. As the court indicated that these facts were essential to a best interests analysis and as they were in dispute, a hearing was mandated.

This is a somewhat interesting interpretation of the agreement. Clients may now have to be counseled that it is possible that although they had agreed in a court-ordered stipulation to a certain radius clause, another court could find that it is only one factor to be considered whenever a relocation is proposed. The courts have always considered the best interests of the children when a party has sought to relocate beyond the radius clause limit. This particular case involved the relocation within the radius clause and is perhaps the first case which involved the best interests analysis, although the party was in compliance with the original agreement.