Hirtz v. Hirtz

Summary

The Appellate Division reviewed a Family Court order denying the father’s petition to relocate with the parties’ children from New York to North Carolina. The court upheld the denial of relocation based on the children’s best interests but held that the Family Court improperly modified joint legal custody to sole legal custody for the mother without notice that legal custody was at issue. The court also struck a prospective custodial plan addressing a possible future move by the parties to the same state.

Holdings

1. The father failed to demonstrate by a preponderance of the evidence that relocating the children to North Carolina was in their best interests, so denial of the relocation petition was proper.
2. The Family Court improperly modified the prior consent order to award the mother sole legal custody because the mother did not request modification of legal custody and the father had no notice that legal custody was at issue.
3. The Family Court improperly established a custodial plan that would apply if the parties later decided to reside in the same state because that future issue had not been raised or litigated.

Questions Presented

1. Whether the father demonstrated by a preponderance of the evidence that relocating with the children to North Carolina was in their best interests.
2. Whether the Family Court could modify the parties' joint legal-custody arrangement to award the mother sole legal custody when the mother had not requested that relief and the father had no notice that legal custody was at issue.
3. Whether the Family Court could establish a prospective custodial plan for a future circumstance in which the parties might reside in the same state when that issue had not been raised or litigated.

Disposition

affirmed