text:
    [664 NE2d 1243, 642 NYS2d 181]
    In the Matter of Lee TT., Respondent, v Michael Dowling, as Commissioner of the New York State Department of Social Services, et al., Appellants. In the Matter of Joel P. et al., Respondents-Appellants, v Mary Jo Bane, as Commissioner of the New York State Department of Social Services, et al., Appellants-Respondents, et al., Respondents.
    Argued February 8, 1996;
    decided April 4, 1996

      POINTS OF COUNSEL

      Dennis C. Vacco, Attorney-General, Albany (Lew A. Millenbach, Victoria A. Graffeo and Peter H. Schiff of counsel), for appellants in the first above-entitled proceeding and appellants-respondents in the second above-entitled proceeding.
    Due process does not require that the "preponderance of the evidence” standard be applied to the administrative hearing conducted pursuant to Social Services Law § 422 (8) (b) to determine whether to expunge a report of the alleged abuse or maltreatment from the Central Register. (Valmonte v Bane, 18 F3d 992; Mathews v Eldridge, 424 US 319.)

      Kevin L. O’Brien, Albany, for respondent in the first above-entitled proceeding.
    Due process requires a "preponderance of the evidence” standard at administrative reviews and hearings conducted pursuant to Social Services Law § 422 (8) (b). (Valmonte v Bane, 18 F3d 992; Santosky v Kramer, 455 US 745; Matter of Smith v Perales, 208 AD2d 752, 86 NY2d 837.)

      Newman & Schwartz, New York City (Richard A. Greenberg and Karl E. Pflanz of counsel), and Bruce K. Bentley for respondents-appellants in the second above-entitled proceeding.
    I. When a person challenges the inclusion of her name in the Central Register, due process requires a higher standard than merely "some credible evidence” to maintain her name in the Register, as the Second Circuit and all four departments of the Court below have held. (Valmonte v Bane, 18 F3d 992; Matter of Smith v Perales, 208 AD2d 752; Santosky v Kramer, 455 US 745; People v Scott, 79 NY2d 474.) II. Assuming that the "some credible evidence” standard violates due process, as all four departments of the Court below have held, petitioners are entitled to a new hearing, and not simply a new determination, in view of the inevitable impact that the unconstitutional standard had on the way that petitioners defended the matter at the hearing and the way the fact finder assessed the evidence. (Valmonte v Bane, 18 F3d 992; Matter of John AA., 89 AD2d 738; Santosky v Kramer, 455 US 745.)

      Rosin & Reiniger, New York City (Benjamin J. Rosin of counsel), for Louise Wise Services for Children, respondent in the second above-entitled proceeding.
    There is no reason to require a new hearing upon a remand of a case from the Court below when the case is sent back for a determination of the evidence on a higher standard of proof.
   OPINION OF THE COURT

Simons, J.

These are two unrelated CPLR article 78 proceedings in which petitioners sought to have their names expunged from the New York State Central Register of Child Abuse and Maltreatment. Respondents, officials of the State and local Social Services Departments, appeal orders of the Appellate Division which, in each proceeding, declared that the statutory standard of proof sufficient to substantiate reports of abuse entered in the Central Register violates the Due Process Clause of the Federal Constitution (US Const 14th Amend) and remitted the matters for new determinations. In Matter of Joel P. petitioners cross-appeal, contending that they are entitled to a new hearing.

The orders should be affirmed and the matters remitted to the Department of Social Services for new determinations based upon the existing record.

New York, like the vast majority of other States in the Nation, maintains a Central Register listing reported incidents of child abuse received in writing or over a 24-hour telephone hotline. The Register serves three broad purposes: (1) to aid social workers in their duties of investigating, treating and preventing child abuse, (2) to compile information and statistics about the extent and nature of child abuse in the State and (3) to inform employers, licensing agencies and foster and adoptive parent agencies about child abusers for the purpose of regulating their future employment or licensure.

In an effort to reconcile the conflicting interests of the State in maintaining the Register and the interests of reported individuals who are the subject of erroneous inclusion in the Register, the Legislature has enacted an elaborate statutory-scheme establishing a procedure for the receipt of reports of suspected child abuse, investigation of the reports, an opportunity for the subject of the report to seek expunction and, finally, judicial review in an article 78 proceeding of an administrative decision denying expunction. Whether the report is substantiated, and therefore retained in the Register, or not rests upon a finding that the report is supported by "some credible evidence." It is this standard of proof which petitioners have successfully challenged in the courts below.

We conclude that the statutory scheme regulating the Central Register violates constitutional standards and we therefore affirm both orders. A report of abuse must be substantiated by a fair preponderance of the evidence before information regarding the subject may be disseminated to employers in certain child care agencies or provider agencies in which the subject would have regular and substantial contact with children cared for by the agency, licensing agencies or foster and adoptive care agencies (hereinafter providers and licensing agencies) (see, Social Services Law § 424-a). Our result is consistent with the interpretation of the Federal Constitution made by the United States Court of Appeals for the Second Circuit (see, Valmonte v Bane, 18 F3d 992) and with decisions by the two other departments of the Appellate Division who also have found the statute wanting (see, Matter of Smith v Perales, 208 AD2d 752 [2d Dept], appeal dismissed 86 NY2d 837; Matter of Janice A. M. P. v Bane, 216 AD2d 937 [4th Dept]).

I

The statutes involved are found in article 6, title 6 of the New York Social Services Law. They govern the reporting, investigation and recording of reports of suspected abuse or maltreatment of children and the administrative process by which "indicated", i.e., substantiated, reports may be reviewed and a determination made whether they should be maintained in the Central Register or expunged.

The Central Register is one part of a larger system designed to protect the safety of children in New York State and its procedures are triggered by receipt of a report of suspected abuse or maltreatment. The reports may be mandated (physicians, school authorities, etc.) or permissive (see, Social Services Law §§ 413, 414). If the allegations contained in the report "could reasonably constitute a report of child abuse or maltreatment”, or "if true would constitute child abuse or maltreatment”, the report must be transmitted to the appropriate local child protective agency for investigation (Social Services Law § 422 [2] [a], [b]). The local agency then determines whether the report is "indicated” or "unfounded” (Social Services Law § 424 [7]). Indicated reports are maintained in the Central Register. Unfounded reports are deleted and all records and reports are destroyed (Social Services Law § 422 [5], [8] [a] [iii]; [c] [i]). A report is indicated if there is "some credible evidence” that the subject committed the act and the act constitutes abuse or maltreatment (Social Services Law § 412 [12]). When a report is indicated, the subject is notified and may request that the report be expunged (Social Services Law § 422 [8J).

If a subject requests expunction, the State Department of Social Services conducts a review of the report. It first determines whether there is some credible evidence that the subject committed the act and that the act constitutes abuse or maltreatment (Social Services Law § 422 [8] [a] [ii]). If there is no such evidence, the report is expunged. However, if the Department finds some credible evidence of abuse, it must then decide whether the act could be relevant and reasonably related to: (a) employment with certain child care agencies as defined in Social Services Law § 424-a (3); (b) the subject having regular and substantial contact with children cared for by a provider agency; or (c) approval of an application to a licensing, adoption or foster care agency as defined in Social Services Law § 424-a (4) (Social Services Law § 422 [8] [a] [ii]). If the Department concludes that the act is not or could not be relevant and reasonably related to those matters, the report is not expunged, but it is not disclosed to provider or licensing agencies upon an inquiry to the Central Register about the subject of the report (Social Services Law § 422 [8] [a] [iv]).

If the expunction request is denied, an administrative hearing is scheduled (Social Services Law § 422 [8] [a] [v]; [b] [i]). At the hearing, the investigating agency must prove by some credible evidence that the subject committed the act or acts of abuse or maltreatment indicated in the report (Social Services Law § 422 [8] [b] [ii]). If the investigating agency satisfies that burden, the report is not expunged and the hearing officer must then make findings on relevancy similar to the analysis of relevancy performed by the Commissioner (see, Social Services Law § 422 [8] [c] [ii]; § 424-a).

Finally, if the report is not expunged after the hearing, the subject of the report may commence a proceeding pursuant to CPLR article 78 to challenge the decision.

The information in the Central Register is confidential and unlawful disclosure constitutes a misdemeanor (Social Services Law § 422 [4], [12]). However, Central Register reports are available to a number of law enforcement and child care agencies (see, Social Services Law § 422 [4] [A]) and must be disclosed under certain circumstances (Social Services Law § 424-a). For example, if a person applies for a certificate or license to be a foster parent or applies to adopt a child, the agency must inquire of the Central Register whether there is an indicated report on the applicant (Social Services Law § 424-a [1]). Similarly, an employer must inquire of the Central Register whether there is an indicated report on an applicant who seeks employment in a job that would involve "regular and substantial contact with children” (Social Services Law § 424-a [1] [b] [i]). Under the terms of the statute, if, after inquiry, the subject of the indicated report is denied a license or employment due to the existence of the report, the subject is entitled to a post-deprivation hearing at which the investigating agency must prove by a "fair preponderance of the evidence” that the abuse or maltreatment occurred (Social Services Law § 424-a [2] [d]\ The failure to sustain this burden does not result in expungement of an indicated report, however, but is noted on the report and precludes disclosure to provider and licensing agencies (Social Services Law § 424-a [2] [d]). If the investigating agency does sustain this burden, the subject’s name stays on the Central Register and is subject to disclosure upon inquiry. If the provider or licensing agency should hire or license the applicant, notwithstanding an indicated report of child abuse, it must specify the reasons for doing so in writing (Social Services Law § 424-a [2] [a]).

Unless expunged earlier pursuant to these procedures, an indicated report must be expunged from the Central Register 10 years after the youngest child referred to in the report turns 18 (Social Services Law § 422 [6]).

II

These statutory provisions were applied in the two appeals before us.

Matter of Lee TT. v Dowling: on July 30, 1991, petitioner Lee TT. was the subject of a telephone hotline report to the Central Register. The report alleged that petitioner, a child psychologist, had sexually abused his 16-year-old stepdaughter. The Central Register transmitted the report to the local County Department of Social Services, and notified petitioner that the report was under investigation to determine whether it was unfounded or should be marked indicated and kept on file.

Following an investigation, the County Department marked the report indicated, concluding that some credible evidence existed to support the allegation of abuse. Petitioner requested the State Commissioner to expunge the record, but following an expunction conference, the request was denied. Thereafter, the petitioner sought a fair hearing. At the conclusion of the hearing, at which petitioner and his stepdaughter both testified, the Administrative Law Judge (ALJ) denied expunction, stating that there was some credible evidence supporting the allegations of sexual abuse or maltreatment and, further, that such acts were relevant and reasonably related to petitioner’s employment by a child care agency. The State Commissioner adopted the recommendation of the ALJ.

Petitioner then instituted an article 78 proceeding asserting that the Commissioner’s determination violated due process guarantees of the Federal Constitution (US Const 14th Amend). Upon transfer to the Third Department, the Appellate Division annulled the determination and remitted the matter to the State Commissioner for a new determination. The Court held that the statutory standard of proof did not aiford adequate due process protection, and that the higher "fair preponderance of the evidence” standard was required at the administrative fair hearing stage conducted pursuant to Social Services Law § 422 (8) (b). This appeal followed.

Matter of Joel P. and Aracelis P. v Bane: petitioners were the foster parents of three children, Jennifer S., born January 3, 1983, Michelle D., born November 7, 1984, and George "Joey” S., born September 18, 1986. On November 8, 1990, a psychologist at the school attended by Michelle D. filed a report of suspected child abuse or maltreatment with the Central Register based on a report of sexual acting-out behavior exhibited by Michelle. During its investigation of the report, the Deputy Director of the New York City Office of Confidential Investigations (OCI) instructed the Director of Louise Wise Services for Children to remove Michelle and Jennifer from petitioner’s care. George "Joey” S. remained in petitioner’s home pending the completion of the OCI report.

A month later, another report concerning the petitioners was filed with the Central Register. The Mount Sinai Hospital reported that Jennifer had made statements during a psychiatric examination that her foster father had touched her sexually. OCI investigated and determined that the reports on Michelle and Jennifer should be marked "indicated”. George "Joey” S. was subsequently removed from petitioner’s home.

Petitioners requested that the records be expunged from the Central Register, but their request was denied. At the administrative fair hearing which followed, the Administrative Law Judge concluded that "some credible evidence” of sexual abuse and inadequate guardianship existed, and it was reasonably related to petitioners’ fitness to be employed in child care or to become foster or adoptive parents. The motion for expunction was denied.

Petitioners instituted this article 78 proceeding seeking to review that determination. Supreme Court transferred the proceeding to the Appellate Division, First Department, which unanimously granted the petition, annulled the determination of the State Commissioner and remanded the matter to the Department of Social Services for a new determination on the original record using a fair preponderance of the evidence standard of proof.

ra

Analysis begins by determining if the State has impaired any constitutionally protected right of petitioners and, if so, what process is due them.

A

The Due Process Clause of the Fourteenth Amendment to the United States Constitution and the similar provision contained in our State Constitution prohibit the government from depriving a person of "life, liberty or property without due process of law” (US Const 14th Amend; NY Const, art I, § 6). "Whether the constitutional guarantee applies depends on whether the government’s actions impair a protected liberty or property interest. In these proceedings, petitioners contend that the State’s action impairs a protected liberty interest in reputation and their concomitant ability to secure employment in their chosen fields.

There is no constitutional prohibition against the State maintaining a list of suspected abusers. It may receive, index and investigate reports of maltreatment of children to assist it in discharging its responsibilities to protect and care for the subjects of the abuse or to enforce the penal laws. The Central Register provides important aids in meeting those tasks. Damaging though the information it contains may be to the subject’s reputation if revealed publicly, keeping it is a legitimate exercise of the State’s police powers and does not implicate constitutional concerns (see, Whalen v Roe, 429 US 589, 598; Paul v Davis, 424 US 693; see generally, Moore, Charting a Course Between Scylla and Charybdis: Child Abuse Registries and Procedural Due Process, 73 NC L Rev 2063; Phillips, The Constitutionality of Employer-Accessible Child Abuse Registries: Due Process Implications of Governmental Occupational Blacklisting, 92 Mich L Rev 139, 150-163).

Moreover, such information may be disseminated to others under some circumstances: government agencies commonly share information for law enforcement and investigative purposes. The consequent damage to a subject’s good name resulting from inaccuracies is not a matter of constitutional magnitude but must be addressed by the tort laws regulating defamation. Indeed, the Supreme Court has held that the police can publish the fact that an individual has been arrested, even though the charges were subsequently dismissed, without violating the subject’s constitutional rights (see, Paul v Davis, supra). The stigma which results from the publication of such defamatory material is not constitutionally protected. A loss of liberty results only if some more "tangible” interest is affected or a legal right is altered (Paul v Davis, supra, at 701, 708-709; cf., Siegert v Gilley, 500 US 226). In the commonly accepted phrase, there must be "stigma plus” (see, Colaizzi v Walker, 542 F2d 969, 973; see also, Valmonte v Bane, 18 F3d 992, 1000, supra; Neu v Corcoran, 869 F2d 662, 667; cf., Smith v Organization of Foster Families, 431 US 816 [no constitutionally protected privacy interest in foster family relationship]). The additional injury may be found in the loss of employment or the foreclosure of future employment opportunities (Paul v Davis, supra, at 701; Valmonte v Bane, 18 F3d 992, supra; Doe v United States Dept. of Justice, 753 F2d 1092, 1106-1107).

Most certainly there was stigma here. Branding petitioners child abusers called into question their " 'good name, reputatian, honor, or integrity’ ” (Board of Regents v Roth, 408 US 564, 573). The question is whether the State’s action resulted in the additional damage sufficient to constitute a constitutional deprivation as defined by the holding in Paul v Davis (supra).

Petitioner Lee TT. was employed as a psychologist in the Child Care Center at a State Psychiatric Center. Following his listing he was transferred out of his unit. It is not clear that his transfer resulted from the report to the Central Register, but it is clear that petitioner’s listing has severely jeopardized future employment prospects in his chosen field. Not only is the information that he is the subject of an indicated report available to all child care providers, future employers must consult the list before hiring petitioner and if they choose to hire him they are required by law to state in writing their specific reasons for doing so (Social Services Law § 424-a [2] [a]).

The liberty interests of Joel P. and Aracelis P. are similarly injured. Foster parents are licensed by the State or an authorized foster care agency (Social Services Law §§ 376, 377). They provide care under a contractual agreement and are compensated for their services (18 NYCRR 427.2, 427.6). As a consequence of their listing in the Central Register, the foster children petitioners had cared for were removed from their home. The benefits available to them as foster parents, including the recognized right to be compensated for supplying foster care have been foreclosed (Social Services Law § 398). Moreover, the statutory preference they enjoyed to adopt George "Joey” S. has been lost (see, Social Services Law § 383 [3]) and their efforts to adopt him have been terminated. Manifestly, they will not be employed as foster parents or regarded as suitable adoptive parents in the future. Any agency which attempted to do so would be required by statute to justify its action in writing before hiring them (Social Services Law § 424-a [2] [a]).

In sum, the inclusion of petitioners in the Central Register not only harmed their personal reputations, it affected their present employment and effectively foreclosed them from any future employment in the child care area. It signified not that petitioners had performed poorly in their prior jobs or suffered from personal inadequacies but that they presented a potential danger to children or, worse, that they might be capable of criminal conduct toward them. If a future provider or licensing agency did not accept that as so, it had to specify in writing why it believed the subject should be employed or licensed, the information in the Central Register notwithstanding.

B

Having determined that petitioners have a protected interest, we turn next to a consideration of whether the procedures the statute provides protect individuals from an improper deprivation of that interest. That inquiry involves a consideration of three factors: (1) the private interest affected by the State’s action, (2) the risk of an erroneous deprivation of that interest through the procedures used and the probable value, if any, of additional safeguards and (3) a consideration of the government’s interest (Mathews v Eldridge, 424 US 319).

The potential loss of employment as either a child psychologist or a foster parent, or of the right to pursue adoption of a child are substantial interests. The government’s characterization of petitioners as child abusers affects not only their present employment in the child care field or as foster parents; it effectively bars them from obtaining similar employment or benefits in the future. Moreover, the characterizations of Joel and Aracelis as child abusers has cost them the care of a child they were in the process of adopting and, realistically, it has foreclosed any possibility of future adoption. Thus, for these petitioners the State’s action has compromised some of life’s most important interests, earning a livelihood in one’s chosen field and establishing a family. Indeed, the stigma of being branded a child abuser may extend well beyond employment in the child care field to prevent employment in any field.

The State has at least two identifiable interests in maintaining the Central Register. First, it has a parens patriae interest. It is an unfortunate reality of modern life that children are often victimized and that the State has a strong interest in preserving and promoting their health and welfare and protecting them from abuse (see, Santosky v Kramer, 455 US 745, 766). Indeed, the laws against child abuse and child neglect are an implicit recognition that even the. rights of parents are not absolute and that society through its courts and social service agencies should intervene to protect endangered children.

Minimal procedural safeguards facilitate the State’s efforts to limit children’s exposure to abuse because they allow the State to respond quickly to isolate children from potentially dangerous contact with adults on the first indication of possible maltreatment and forewarn providers and licensing agencies of possible future harm. Enhancing procedural protections to protect private interests necessarily impedes these efforts by the State, though it may serve the State’s interest in other ways by reducing the number of false negative findings.

Second, the State has a clear interest in controlling the expense involved in maintaining the Central Register (see, Santosky v Kramer, supra). Stricter procedures may increase costs in investigating and defending the maintenance of the Register. Though such increases properly may be weighed against the potential benefits to protected private interests (see, Mathews v Eldridge, supra, at 347-348), the State has not submitted evidence that a change of procedure would increase costs or how much the increase might be and thus, it is not a consideration in the matters before us.

Manifestly, both the State and private interests involved in these matters are weighty and compelling. The balance must be struck by assessing the risk of error.

Complaints of suspected child abuse are required not only from doctors, teachers and others similarly employed, but may be received from anyone, whether under a duty to report or not and whether identified or anonymous. The statute provides that those reports may be indicated if they are supported by "some credible evidence.” The standard is defined in the Department’s manual as "evidence worthy of being believed” (Dept of Social Servs Child Protective Servs Manual, Appendix B, at 7 [Aug. 1989]). One commentator has observed that this standard safeguards only against bad faith or entirely unfounded reports of child abuse: it provides no assurance that reports sounding reasonable are, nevertheless, erroneous because the same evidence motivating the report will provide the basis for confirming it (Phillips, The Constitutionality of Employer-Accessible Child Abuse Registries: Due Process Implications of Governmental Occupational Blacklisting, 92 Mich L Rev 139, 188-189). Petitioners characterize the "some credible evidence” standard as requiring little more than rumor to substantiate a report.

However the standard is viewed, it assuredly permits a "bare minimum” of evidence to support the allegations against the subject (Valmonte v Bane, supra, at 1004). It imposes no duty on the fact finder to weigh conflicting evidence, no matter how substantial, and allows a report to be indicated if only one out of several believable items of evidence supports it.

The dangers of such a minimal standard of proof are evident. Abuse frequently involves private conduct and is based upon the reports of minors or actions of a minor observed and interpreted by others. There may be no supporting eyewitness testimony or objective evidence to support the report and therefore the evaluation of it may involve, to a large degree, subjective determinations of credibility. Under the present standard a fact finder in such cases may be tempted to rely on an intuitive determination, ignoring any contrary evidence. The risk of error is placed entirely on the subject of the report for there is no requirement that the fact finder must consider, let alone evaluate, evidence favorable to the subject.

Not surprisingly this process results in a disturbingly high number of false positive findings of abuse. In Valmonte v Bane (supra), plaintiffs asserted, without contradiction by. the State, that 75% of the challenged reports of abuse were successfully expunged (id., at 1003-1004). While the State now questions that figure, the margin of error is unquestionably significant and results in substantial injury to constitutionally protected private interests (see generally, Besharov, "Doing Something” about Child Abuse: The Need to Narrow the Grounds for State Intervention, 8 Harv J Law & Pub Policy 539). The most practical method of safeguarding subjects reported to the Central Register is to require a higher standard of proof before reports are substantiated. The degree of proof appropriate to the circumstances is the kind of question that has been traditionally resolved by the courts (Santosky v Kramer, 455 US 745, 755-756, supra,). It should reflect not only the weight of the public and private interests affected, but also a judgment about how the risks of error should be distributed (id.).

We conclude that the Due Process Clause of the Federal Constitution requires the Department to substantiate reports of child abuse by a fair preponderance of the evidence before they may be disseminated to providers and licensing agencies as a screening device for future employment. During the investigative process the information may be retained on the strength of some credible evidence supporting it and released to those health care and law enforcement agencies under the terms and conditions listed in section 422 (4) (A). No report shall be released to providers or licensing agencies, however, until a fact finder determines after a hearing that the report is substantiated by a fair preponderance of the evidence or the subject’s time to move for expunction has expired.

IV

The Department maintains that the risk of error is sufficiently minimized by the statute’s provision for a postdeprivation hearing at which the sufficiency of the abuse must be established by a fair preponderance of the evidence (Social Services Law § 424-a [2] [a], [d]).

Due process requires that a person whose constitutional rights are affected by government action is entitled to be heard and it makes obvious sense in most cases "to minimize substantially unfair or mistaken deprivations” by insisting that the hearing be granted at a time when the deprivation can still be prevented (see, Fuentes v Shevin, 407 US 67, 79-82). That is particularly so in cases involving reputational injuries. The deprivation of a constitutionally protected property interest may be remedied post hoc by monetary damages but the injury inflicted on one’s reputation cannot be so easily overcome. The damage to the subject following publication of an unsubstantiated report of child abuse may be irreversible. Moreover, even where the facts that abuse occurred are clear, the appropriateness of disclosing that finding may not be (see, Cleveland Bd. of Educ. v Loudermill, 470 US 532, 543). Indeed, the statute provides that substantiated reports may not be disclosed unless relevant and reasonably related to employment (see, Social Services Law § 422 [8] [a] [ii]; § 424-a).

In the absence of any evidence from the State that a predeprivation hearing will involve excessive costs or be unduly burdensome when compared to a postdeprivation hearing, subjects are entitled to a predeprivation hearing to determine by a fair preponderance of the evidence whether reports of abuse can be substantiated and relevant to future employment or licensure.

V

Petitioners Joel P. and Aracelis P. contend that the Due Process Clause of the State Constitution also requires a higher standard of proof at the hearing stage (NY Const, art I, § 6). Their claim rests on recognized principles of federalism which hold that State courts are bound by Supreme Court decisions defining Federal constitutional rights but that those rulings establish a minimum standard which State courts may surpass when interpreting their State Constitution so long as their decisions do not conflict with Federal law (see generally, Matter of Town of lslip v Caviglia, 73 NY2d 544, 556; People v P. J. Video, 68 NY2d 296, 301-302; cf., Sharrock v Dell Buick-Cadillac, 45 NY2d 152). Inasmuch as we conclude that the relief petitioners requested is warranted under Federal constitutional principles, we have no occasion to consider whether the Due Process Clause of the State Constitution guarantees even broader protections.

Accordingly, in Matter of Lee TT. v Dowling the order of the Appellate Division should be affirmed, with costs, and in Mat ter of Joel P. v Bane the order of the Appellate Division should be affirmed, without costs.

Chief Judge Kaye and Judges Titone, Bellacosa, Smith, Levine and Ciparick concur.

In Matter of Lee TT. v Dowling: Order affirmed, with costs.

In Matter of Joel P. v Bane: Order affirmed, without costs.

       Respondents maintain that they have, since the Valmonte decision, formulated new rules which implement a system adequately protecting the interests of subjects. Those rules were not applied in the matters before us and we have no occasion to consider them or pass on their validity.


source: Caselaw Access Project

author: Chief Judge Kaye. Simons, J.

license: Public Domain

text:
    [665 NE2d 138, 642 NYS2d 568]
    The People of the State of New York, Appellant, v Larry Smith, Also Known as Keith Gates, Also Known as Edwin Kevin Fischer, Respondent.
    Argued January 2,1996;
    decided February 8, 1996

      POINTS OF COUNSEL

      Robert M. Morgenthau, District Attorney of New York County, New York City (Sheryl Feldman, Mark Dwyer and Nikki Kowalski of counsel), for appellant.
    The prosecutor was entitled to inquire about defendant’s 1977 robbery conviction if defendant chose to testify in the Grand Jury. (People v Betts, 70 NY2d 289; People v Brewster, 63 NY2d 419; People v Swamp, 84 NY2d 725; People v Sandoval, 34 NY2d 371; People v Walker, 83 NY2d 455; People v Williams, 186 AD2d 469, 81 NY2d 849; People v La Torres, 186 AD2d 479, 81 NY2d 842; Matter of Holtzman v Hellenbrand, 92 AD2d 405; United States v Mastrangelo, 693 F2d 269, 467 US 1204.)

      Diane E. Courselle, New York City, and E. Joshua Rosenkranz for respondent.
    The trial court correctly held that Larry Smith was denied his right to testify in the Grand Jury because the People’s insistence on questioning him about his 15-year-old robbery conviction would have forced him to sacrifice his Fifth Amendment rights in his unrelated pending perjury case in order to exercise his right to testify before the Grand Jury in this case. (People v Betts, 70 NY2d 289; People v Evans, 79 NY2d 407; People v Young, 137 Misc 2d 400; People v Smith, 84 NY2d 998; People v Brewster, 63 NY2d 419; People v Lancaster, 69 NY2d 20, 480 US 922; United States v Dardi, 330 F2d 316; People v Coppola, 123 Misc 2d 31; People v Heller, 122 Misc 2d 991; People v Leite, 78 Misc 2d 296.)
   OPINION OF THE COURT

Chief Judge Kaye.

In People v Betts (70 NY2d 289), this Court held that a defendant who elects to waive the Fifth Amendment privilege against self-incrimination and testify at trial does not automatically waive the constitutional protection with respect to cross-examination regarding unrelated pending criminal charges. We must now determine whether this principle applies, to a prospective defendant’s testimony before the Grand Jury, so as to preclude cross-examination of him, solely for impeachment purposes, regarding an unrelated pending charge. Under the narrow circumstances presented, we conclude that the Betts rationale applies and that dismissal of the indictment was appropriate.

I.

In September 1991, defendant allegedly offered to sell concert tickets to several individuals and then stole the $120 collected by the group. Upon receiving notice of the People’s intent to present this larceny case to the Grand Jury, defendant served reciprocal notice of his intent to testify. He was not given an opportunity to testify during presentment of the charges, however, and in November 1991 the indictment was dismissed. The People subsequently obtained an unrelated indictment charging defendant with perjury based upon his testimony before a separate Grand Jury in November of 1990. That perjury indictment rested on defendant’s alleged denial that he had ever been arrested for or convicted of robbery when in fact he was convicted of robbery in 1977.

On March 16, 1992, approximately one week after obtaining the perjury indictment, the People sought to re-present the charges in the larceny case to a second Grand Jury, and defendant was produced in order to testify. When the prosecutor informed defense counsel that he intended to question defendant about all of his prior convictions, including the 1977 robbery conviction, counsel explained that he would instruct his client not to answer questions regarding the 1977 conviction since such questioning would force defendant to incriminate himself as to the pending perjury charge. At the prosecutor’s suggestion, the parties sought a ruling from the Grand Jury Judge, who held that the prosecutor could cross-examine defendant about the 1977 robbery conviction and that defendant could not refuse to answer. Defendant elected not to testify, and the Grand Jury returned an indictment charging defendant with grand larceny in the fourth degree and criminal possession of stolen property in the fifth degree.

Before the trial court, defendant moved to dismiss the indictment pursuant to CPL 190.50, 210.20 and 210.35, urging that he was forced to forego testifying regarding the larceny case by the Grand Jury Judge’s ruling that he would thereby forfeit his Fifth Amendment right not to incriminate himself as to the pending perjury charge. The prosecutor conceded that "of course” he had intended to use the defendant’s responses about the 1977 robbery conviction against him in the upcoming perjury trial but nevertheless maintained that the Fifth Amendment did not preclude such questioning. The court granted defendant’s motion and dismissed the indictment with leave to re-present a third time, holding that the People could not cross-examine defendant regarding the 1977 robbery conviction should he testify at any future Grand Jury proceeding. The Appellate Division affirmed. We agree with the core decision reached by both the trial court and the Appellate Division and therefore affirm.

II.

A defendant who elects to waive the Fifth Amendment privilege against self-incrimination and testify at trial generally may be cross-examined regarding prior criminal or immoral acts affecting credibility (People v Bennett, 79 NY2d 464, 468; People v Sorge, 301 NY 198, 200). As we held in People v Betts (70 NY2d 289), however, a testifying defendant does not automatically waive the privilege against self-incrimination as to questions concerning pending criminal charges unrelated to the case on trial. Thus, cross-examination of a defendant at trial, for credibility purposes, with respect to an unrelated pending charge is prohibited, except where the defendant’s own assertions "open the door” to such questioning (id., at 295; see also, People v Bennett, 79 NY2d at 468).

Betts is premised on a recognition that forcing a defendant to sacrifice the privilege against self-incrimination as to a pending charge in order to take the stand in one’s own defense in an unrelated case exerts "an undeniable chilling effect upon a real 'choice’ whether to testify” (People v Betts, 70 NY2d at 292). Consequently, allowing the People to attack a testifying defendant’s credibility through cross-examination regarding an unrelated pending charge would unfairly compromise two discrete constitutional rights: the defendant’s right to testify with respect to the case on trial and the "correspondingly important” right not to incriminate oneself as to the pending matter (People v Betts, 70 NY2d at 295).

Betts involved a defendant’s decision whether to take the stand in his own defense at trial. Here the dilemma is posed not as to trial but as to defendant’s right to testify before the Grand Jury. Because the right to testify in Grand Jury proceedings derives from statute rather than the Constitution, the People and the dissent urge that Betts is simply inapplicable. We disagree.

To be sure, a prospective defendant has no constitutional right to testify before the Grand Jury. That right is provided by CPL 190.50 (5). Upon serving the proper notice, appearing at the given time and place, and executing a waiver of immunity, a prospective defendant "must be permitted to testify before the grand jury and to give any relevant and competent evidence concerning the case under consideration” (CPL 190.50 [5] [a], [b]). By waiving the right to immunity, a testifying defendant before the Grand Jury necessarily gives up the Fifth Amendment privilege against self-incrimination (see, CPL 190.45 [1]).

According to the People, a prospective defendant who signs a waiver of immunity and exercises the statutory right to testify automatically also waives the privilege against self-incrimination as to all matters — including unrelated pending charges. But nothing in the statutory language indicates that the Legislature contemplated the waiver of the privilege against self-incrimination to exceed the scope of the accused’s right to testify. As specified by CPL 190.50 (5), a prospective defendant’s right to testify encompasses only those matters relevant to the case before the Grand Jury (see, People v Smith, 84 NY2d 998, 1001).

Both the People and the dissent, moreover, focus primarily on the constitutional nature of the right to testify at trial, overlooking this Court’s additional explicit concern in Betts for the discrete, related and "correspondingly important” right against self-incrimination as to pending charges (see, People v Bennett, 79 NY2d at 468, supra [per se rule enunciated in Betts is appropriate "because of the constitutional protections against self-incrimination”]). An unindicted defendant also has the constitutional right not to incriminate oneself regarding pending charges. Conditioning this right on the relinquishment of the right to testify before the Grand Jury in an unrelated case certainly jeopardizes and even dilutes the Fifth Amendment privilege (cf., Minnesota v Murphy, 465 US 420, 435-436 [noting that it would be impermissible to require a probationer to choose between asserting his privilege not to make statements that would incriminate him in a pending or later criminal prosecution and answering questions relevant to the continuance of his probationary status]).

Likewise, requiring a prospective defendant wishing to testify to forego the Fifth Amendment protection and suffer incrimination as to unrelated pending charges would place a high constitutional price on the right to testify before the Grand Jury. This right, albeit statutory, is significant (see, People v Evans, 79 NY2d 407, 413-414). " 'A person’s reputation can be ruined forever by the mere handing up of an indictment, even though subsequently the indictment is dismissed, or the person tried and later acquitted’ ” (People v Lazar, 51 Misc 2d 233, 235).

Thus, CPL 190.50 (5) (a) mandates that, where the defendant has been arraigned upon an undisposed felony complaint, the People "must” notify the defendant of the Grand Jury proceeding and accord a reasonable time to appear. This provision, adopted as part of the recodification of the Code of Criminal Procedure, expanded a defendant’s rights to receive notice of pending or prospective Grand Jury proceedings (see, People v Evans, 79 NY2d at 412-413). Significantly, any indictment obtained in violation of the statutory notice and waiver provisions "is invalid” and "must be dismissed” upon timely motion (CPL 190.50 [5] [c]; see also, CPL 210.20, 210.35 [4]).

As this Court explained in People v Evans (79 NY2d 407 at 413-414), CPL 190.50 (5) "protects] defendants’ valued statutory option to appear at this critical accusatory stage to offer testimony that may affect the Grand Jury’s consideration of the otherwise exclusive, ex parte presentment of evidence by the prosecution.” To guard against abridgement of this "valued” right, we have further ordered that it "must be scrupulously protected” (People v Corrigan, 80 NY2d 326, 332; see, e.g, People v Evans, 79 NY2d at 414 [affirming dismissal of indictment, because statutory right to testify was not satisfied by opportunity to appear after Grand Jury had voted indictment]).

The stakes before the Grand Jury may be somewhat lower than at trial. However, conditioning the right to testify upon waiver of the constitutional right against self-incrimination in a pending charge — solely for the purpose of allowing the People to impeach the accused’s credibility before the Grand Jury— would be incompatible with the legislative and judicial efforts to safeguard this substantial right. This is particularly so where the prosecutor’s admitted intention was to acquire sworn testimony for future use in an unrelated proceeding (cf., People v Russ, 79 NY2d 173, 178 [improper use of Grand Jury testimony at trial was not made in good faith but to circumvent evidentiary rule]). Such a condition would undoubtedly "exert! ] an undeniable chilling effect upon a real 'choice’ whether to testify in one’s own behalf’ (People v Betts, 70 NY2d at 292).

We therefore conclude that a prospective defendant who elects to testify before the Grand Jury does not waive the privilege against self-incrimination as to credibility questioning regarding unrelated pending charges.

III.

Turning to the preliminary ruling by the Grand Jury Judge in this case, we hold that it was error to preclude defendant from asserting his Fifth Amendment privilege as to questions concerning his 1977 robbery conviction.

The People contend that defendant’s credibility could be challenged through cross-examination regarding the 1977 conviction, since such questioning concerned a completed crime rather than the pending perjury charge. While a testifying defendant may generally be cross-examined for credibility purposes regarding a prior conviction, defendant’s 1977 robbery conviction (and his prior denial thereof) happened also to be the subject of the pending perjury charge. The potentially incriminatory impact of defendant’s acknowledgement of the 1977 conviction is obvious. Indeed, the trial prosecutor’s concession below that he planned to use defendant’s responses against him in the perjury case belies the People’s present claim that the proposed credibility questioning was unrelated to the pending charge.

In this highly unusual case, where a prior conviction was also an element of a pending charge, defendant was entitled to the preliminary ruling as to whether he could invoke the privilege against self-incrimination as to questions regarding the pending perjury charge. In this regard, we note that it was the trial prosecutor who initially suggested that the parties seek the preliminary ruling. This should not, as the People suggest, lead to a flood of pre-Grand Jury hearings, for our holding today prohibits nothing more than questioning regarding pending charges solely for the purpose of impeaching the credibility of a defendant who testifies before the Grand Jury.

The People further urge that it was the function of the prosecutor, as legal advisor to the Grand Jury, to determine the propriety of questioning defendant regarding his prior conviction and that it was therefore improper to seek the preliminary ruling from the Grand Jury Judge. Both the court and the prosecutor, however, are legal advisors to the Grand Jury (CPL 190.25 [6]). Thus, determining the permissible scope of cross-examination is not the exclusive province of the prosecutor, and the Grand Jury Judge was empowered to issue the preliminary ruling.

Finally, defendant was not obligated to testify and then seek postindictment review of the Grand Jury Judge’s ruling. Requiring the defendant to subject himself to cross-examination regarding the 1977 robbery conviction and possibly incriminate himself as to the pending perjury charge, with the hope of prevailing in a subsequent challenge, would expose the defendant to potentially irreparable injury and prejudice, rendering his Fifth Amendment protection meaningless.

Accordingly, the order of the Appellate Division should be affirmed.

Simons, J.

(dissenting). Defendant has been indicted for grand larceny. He contends the indictment must be dismissed because his right to appear and testify before the Grand Jury was abridged by a prospective court ruling permitting his cross-examination about a pending criminal charge if he testified. He bases his claim upon our decision in People v Betts (70 NY2d 289; see also, People v Bennett, 79 NY2d 464), which prohibits the People from cross-examining a defendant about pending criminal charges when he chooses to testify during trial and he contends that the Betts rule applies with equal force to Grand Jury proceedings to protect him from incriminating himself in the pending matter. The majority agree with him. However, the purpose of a trial and the constitutional right of a defendant to testify at trial are significantly different from the purpose of Grand Jury proceedings and a defendant’s limited statutory right to testify before the Grand Jury. In my view, Betts need not and should not be applied to the Grand Jury proceedings, and accordingly, I dissent.

Defendant was convicted of robbery in 1977. In 1990, while testifying before a Grand Jury investigating an unrelated charge, he denied that he had been involved in the 1977 robbery. In 1992 defendant was indicted for perjury as a result of that testimony. The larceny charges in this prosecution were subsequently presented to the Grand Jury. When defendant sought to testify the Assistant District Attorney advised him that if he did so, he would be cross-examined about the 1977 robbery and his testimony would be used against him in the pending perjury proceedings. Defendant chose not to testify. He was subsequently indicted for grand larceny and this motion to dismiss followed.

Under the general rule, a criminal defendant who testifies at trial on his own behalf is subject to cross-examination about any "vicious or criminal act of his life” (People v Sorge, 301 NY 198, 200). In People v Sandoval (34 NY2d 371), we recognized that such a broad rule had a chilling effect on the full development of the record because it prevented many defendants from testifying and thereby denied the jury significant evidence affecting guilt or innocence. Accordingly, we held that a defendant could obtain a prospective ruling on the permissible scope of cross-examination directed to immoral, criminal or vicious acts. We did so in an effort to encourage defendants to testify, and we explicitly admonished Trial Justices in exercising their discretion to bear in mind the effect their decisions might have on the fact-finding process if the defendant decided not to testify as a result of their rulings (id., at 378).

In People v Betts (70 NY2d 289, supra), defendant was on trial for rape and was also subject to a pending charge of burglary. The People sought to question him about the pending charge to impeach his credibility. Following a Sandoval hearing, the Trial Justice ruled that the People could do so. That ruling presented defendant with a Hobson’s choice of constitutional magnitude; if he exercised his Sixth Amendment right to testify and defend himself in one prosecution, he waived his Fifth Amendment right against self-incrimination in the other. In short, by permitting defendant to be cross-examined about pending unrelated charges for impeachment purposes in one case, the court had impaired his ability to defend himself against two separate criminal charges. Accordingly, we held that the People could not impeach a testifying defendant by questions about unrelated pending criminal charges, noting that " '[w]hile an accused, unlike an ordinary witness, has an option whether to testify at all, exacting such a [sweeping] waiver as the price of taking the stand leaves little of the right to testify on one’s own behalf ” {id., at 295, quoting McCormick, Evidence § 42, at 92 [3d ed]).

Our ruling in Betts rested on three separate concerns: defendant’s constitutional right to testify at trial, his constitutional right to avoid self-incrimination on a pending charge, and, implicitly, advancing the fact-finding process of the trial. These three concerns are not seriously implicated in Grand Jury proceedings.

Addressing first the Grand Jury’s fact-finding role, a Grand Jury proceeding is something quite different from a trial; its function is limited to the discovery of reasonable cause to indict {see, CPL 190.65 [1]). The Grand Jury does not determine guilt or innocence — it determines only whether sufficient evidence exists to bring charges against the defendant (see, People v Swamp, 84 NY2d 725, 729-730; People v Jennings, 69 NY2d 103, 115; People v Calbud, Inc., 49 NY2d 389, 394). Because of this limited function and purpose, there is no need to further its fact-finding process by applying the Betts rule to enable the subject to present his defense (cf., People v Valles, 62 NY2d 36 [Grand Jury need not be charged on mitigating defenses]).

Moreover, defendant’s right to appear as a witness before the Grand Jury, in contrast to his Sixth Amendment constitutional right to submit evidence on his own behalf at trial, is derived exclusively from statute (CPL 190.50 [5]). This Sixth Amendment right is not diminished in any way if a defendant is foreclosed from testifying before the Grand Jury. Indeed, defendants enjoyed no legal right to appear before the Grand Jury until the Legislature authorized it in 1940 {see, Preiser, Practice Commentaries, McKinney’s Cons Law of NY, Book 11 A, CPL 190.50, at 284; L 1940, ch 643).

Moreover, the right to testify before the Grand Jury is conditional. The statute provides that a defendant choosing to do so must waive immunity, must submit to cross-examination by the District Attorney (CPL 190.50 [5] [b]) and cannot limit the scope of cross-examination except upon agreement of the District Attorney (CPL 190.50 [5] [b]; 190.45 [4]). These statutory provisions authorize the People to fully question a defendant choosing to testify on relevant matters, including his credibility. Neither defendant nor the majority offer any reason why the statutes should be ignored or how they can be interpreted to include the rights announced in Betts.

In sum, two of the three concerns addressed by Betts are absent when defendant chooses not to testify before the Grand Jury — the limited fact-finding function of the Grand Jury is not impaired, and defendant does not forego a constitutional right to testify in order to preserve his right to avoid self-incrimination in another pending matter. Furthermore, the third concern, defendant’s right to testify on his own behalf at the time when guilt or innocence is resolved without incriminating himself in the pending matter, is fully protected because the Betts rule will apply if he is indicted and chooses to take the stand at trial. Thus, the theoretical basis for the Betts rule does not support its application to defendant’s limited statutory right to testify before the Grand Jury.

Refusing to apply Betts here does not, as the defendant contends, diminish his "valued statutory option” to appear before the Grand Jury (see, People v Evans, 79 NY2d 407, 413-414). The Legislature has expressly provided that the statutory right is conditioned upon the defendant’s willingness to waive the privilege against self-incrimination and subject himself to cross-examination by the District Attorney (CPL 190.50 [5] [b]; 190.45 [4]; compare, People v Evans, supra; People v Corrigan, 80 NY2d 326, 332). He still retains his option to testify, but he must exercise it within the boundaries established by the Legislature.

Nor does this conclusion "overlook” the " 'correspondingly important’ ” right to avoid self-incrimination in the pending matter (majority opn, at 720). In Betts, the Court was required to balance the constitutional rights to testify at trial and avoid self-incrimination. But here, because the statutory right to testify before the Grand Jury requires the waiver of the right to avoid self-incrimination, the court need not perform the balancing equation required by the competing rights at stake in Betts.

Accordingly, I would reverse the order of the Appellate Division and reinstate the indictment.

Judges Bellacosa, Smith, Levine and Ciparick concur with Chief Judge Kaye; Judge Simons dissents and votes to reverse in a separate opinion in which Judge Titone concurs.

Order affirmed.


author: Titone, J.

text:
    [665 NE2d 145, 642 NYS2d 575]
    In the Matter of Tammy L. Tropea, Respondent, v John P. Tropea, Appellant. In the Matter of Jacqueline Browner, Respondent, v Andrew Kenward, Appellant.
    Argued February 15,1996;
    decided March 26, 1996
    Argued January 2,1996;
    decided March 26,1996

      POINTS OF COUNSEL

      Sigmund V. Mazur, Syracuse, for appellant in the first above-entitled proceeding.
    I. Respondent did not meet her burden of proof under any circumstances. II. The Court below denied appellant due process in reversing the trial court on the record in allowing relocation without any record before it concerning visitation other than a proposition by the Law Guardian. (Cohen v Hallmark Cards, 45 NY2d 493; Walden v Walden, 41 AD2d 664.)

      J. Scott Porter, Syracuse, for respondent in the first above-entitled proceeding.
    I. The Court below employed the correct legal standards in determining whether to permit this 130-mile relocation. (Friederwitzer v Friederwitzer, 55 NY2d 89; Weiss v Weiss, 52 NY2d 170; Matter of Giovannone v Giovannone, 206 AD2d 869, 84 NY2d 805; Matter of Cassidy v Kapur, 164 AD2d 513; Zaleski v Zaleski, 128 AD2d 865, 70 NY2d 603; Potier v Potier, 198 AD2d 180; Matter of Bennett v Bennett, 208 AD2d 1042; Matter of Lake v Lake, 192 AD2d 751; Rybicki v Rybicki, 176 AD2d 867; Murphy v Murphy, 145 AD2d 857.) II. The findings of the Court below that relocation preserved regular and meaningful visitation and was in the best interests of the children best conforms to the weight of the evidence. (Matter of Radford v Propper, 190 AD2d 93; Braiman v Braiman, 44 NY2d 584; Friederwitzer v Friederwitzer, 55 NY2d 89; Weiss v Weiss, 52 NY2d 170; Matter of Henehan v Henehan, 213 AD2d 761; Zaleski v Zaleski, 128 AD2d 865; Frizell v Frizell, 193 AD2d 861.)

      Marsha A. Hunt, Syracuse, Law Guardian in the first above-entitled proceeding.
    I. The Court below correctly held that the relocation did not deprive the father of regular and meaningful access to the children. (Matter of Giovannone v Giovannone,
      206 AD2d 869; Matter of Lake v Lake, 192 AD2d 751; Matter of Niemiec v Hunsberger, 203 AD2d 731; Matter of Schouten v Schouten, 155 AD2d 461; Matter of Muzzi v Muzzi, 189 AD2d 1022; Fisher v Fisher, 206 AD2d 910; Matter of Miles v Worthington, 199 AD2d 1057; Verity v Verity, 107 AD2d 1082, 65 NY2d 1002; Murphy v Murphy, 145 AD2d 857; Zaleski v Zaleski, 128 AD2d 865.) II. Exceptional circumstances exist which justify the relocation. (Matter of Pecorello v Snodgrass, 142 AD2d 920; Weiss v Weiss, 52 NY2d 170; Matter of Niemiec v Hunsberger, 203 AD2d 731; Matter of Lake v Lake, 192 AD2d 751; Matter of Temperini v Berman, 199 AD2d 399; Kuzmicki v Kuzmicki, 171 AD2d 843; Reyes v Ball, 162 AD2d 770, 77 NY2d 872.) III. Relocation is in the best interests of the children.

      Brian D. Graifman, P. C., New York City (Brian D. Graifman of counsel), for appellant in the second above-entitled proceeding.
    I. The Family Court was correct in holding that the child’s move to a sister State 130 miles away deprived the noncustodial father of regular and meaningful access to his child. (Weiss v Weiss, 52 NY2d 170; Rybicki v Rybicki, 176 AD2d 867; Matter of Bennett v Bennett, 208 AD2d 1042; Roush v Roush, 204 AD2d 195; Murphy v Murphy, 195 AD2d 794.) II. The mother failed otherwise to show exceptional circumstances justifying the relocation. (Kozak v Kozak, 111 AD2d 842; Weiss v Weiss, 52 NY2d 170.) III. The best interests of the child dictate that he not be wrested from his loving father. IV. The Family Court erred as matter of law in predicating its decision in part on the erroneous assumption that the father was "not seeking custody at this time”. (Natt v Natt, 101 AD2d 883; Matter of Atkinson v Atkinson, 197 AD2d 771.)

      Cuddy & Feder & Worby, White Plains (Kathleen Donelli and Joshua E. Kimerling of counsel), for respondent in the second above-entitled proceeding.
    I. The Court below correctly held that the Family Court’s revised visitation schedule maintains regular and meaningful contact between appellant and the child because it provides for three weekend visitation periods each month, holidays following a weekend, an uninterrupted four-week summer visitation period, and complete access to the child’s educational, religious and therapeutic activities. (Weiss v Weiss, 52 NY2d 170; Lavane v Lavane, 201 AD2d 623; Matter of Radford v Propper, 190 AD2d 93; Matter of Niemiec v Hunsberger, 203 AD2d 731; Matter of Lake v Lake, 192 AD2d 751; Matter of Schouten v Schouten, 155 AD2d 461; Blundell v Blundell, 150 AD2d 321; Murphy v Murphy, 145 AD2d 857; Matter of Cassidy v Kapur, 164 AD2d 513; Smith v Finger, 187 AD2d 711.) II. The Family Court correctly held that the relocation was necessitated by exceptional circumstances and served the best interest of the child. (Matter of Temperini v Berman, 199 AD2d 399; Kuzmicki v Kuzmicki, 171 AD2d 843; Lavane v Lavane, 201 AD2d 623; Klein v Klein, 93 AD2d 807; Amato v Amato, 202 AD2d 458; Cataldi v Shaw, 101 AD2d 823; Matter of Clark v Dunn, 195 AD2d 811; Matter of Hollington v Cocchiola, 180 AD2d 635; Von Ohlen v Von Ohlen, 178 AD2d 592.) III. The trial testimony established that the relocation was essential in order for respondent to financially support herself and the child. (Lavane v Lavane, 201 AD2d 623; Matter of Hollington v Cocchiola, 180 AD2d 635; Von Ohlen v Von Ohlen, 178 AD2d 592.)

      Cooper & Daniele, P. C, White Plains (Theresa M. Daniele and Marc J. Domicello of counsel), Law Guardian in the second above-entitled proceeding.
    I. The Court below correctly held that the Family Court’s modified visitation schedule increased appellant’s actual time with the child, afforded appellant an opportunity to be involved with the child’s educational, religious and extracurricular activities, and thereby served to maintain appellant’s regular and meaningful access to the child. (Lavane v Lavane, 201 AD2d 623; Matter of Radford v Propper, 190 AD2d 93; Matter of Niemiec v Hunsberger, 203 AD2d 731; Hemphill v Hemphill, 169 AD2d 29; Smith v Finger, 187 AD2d 711; Matter of A. F. v N. F., 156 AD2d 750; Matter of Schouten v Schouten, 155 AD2d 461; Blundell v Blundell, 150 AD2d 321; Weiss v Weiss, 52 NY2d 170; Matter of Cassidy v Kapur, 164 AD2d 513.) II. The Family Court was correct in concluding that the mother established the existence of exceptional financial and other circumstances to warrant the relocation. (Matter of Temperini v Berman, 199 AD2d 399; Kuzmicki v Kuzmicki, 171 AD2d 843; Klein v Klein, 93 AD2d 807; Von Ohlen v Von Ohlen, 178 AD2d 592; Cataldi v Shaw, 101 AD2d 823; Amato v Amato, 202 AD2d 458; Matter of Hollington v Cocchiola, 180 AD2d 635.) III. The Family Court was correct in that the relocation of the mother with the child served the child’s best interests. (Kuzmicki v Kuzmicki, 171 AD2d 843.)

      . This Court dismissed respondent’s earlier motion for leave to appeal from the prior Appellate Division order on the ground that that order did not finally determine the proceeding within the meaning of the Constitution (85 NY2d 968).

   OPINION OF THE COURT

Titone, J.

In each of these appeals, a divorced spouse who was previously granted custody of the couple’s minor offspring seeks permission to move away from the area in which the noncustodial spouse resides. Both noncustodial spouses oppose the move, contending that it would significantly reduce the access to the children that they now enjoy. Their respective appeals from the Appellate Division order and the Family Court judgment authorizing the requested moves raise significant questions regarding the scope and nature of the inquiry that should be made in cases where a custodial parent proposes to relocate and seeks judicial approval of the relocation plan.

L

Matter of Tropea v Tropea

The parties in this case were married in 1981 and have two children, one born in 1985 and the other in 1988. They were divorced in 1992 pursuant to a judgment that incorporated their previously executed separation agreement. Under that agreement, petitioner mother, who had previously been the children’s primary caregiver, was to have sole custody of the children and respondent father was granted visitation on holidays and "at least three * * * days of each week.” Additionally, the parties were barred from relocating outside of Onondaga County, where both resided, without prior judicial approval.

On June 3, 1993, petitioner brought this proceeding seeking changes in the visitation arrangements and permission to relocate with the children to the Schenectady area. Respondent opposed the requested relief and filed a cross petition for a change of custody. At the ensuing hearing, petitioner testified that she wanted to move because of her plans to marry an architect who had an established firm in Schenectady. According to petitioner, she and her fiancé had already purchased a home in the Schenectady area for themselves and the Tropea children and were now expecting a child of their own. Petitioner stated that she was willing to cooperate in a liberal visitation schedule that would afford respondent frequent and extended contact and that she was prepared to drive the children to and from their father’s Syracuse home, which is about two and a half hours away from Schenectady. Nonetheless, as all parties recognized, the distance between the two homes made midweek visits during the school term impossible.

Respondent took the position that petitioner’s "need” to move was really the product of her own life-style choice and that, consequently, he should not be the parent who is "punished” with the loss of proximity and weekday contact. Instead, respondent proposed that he be awarded custody of the children if petitioner chose to relocate. To support this proposal, respondent adduced evidence to show that he had maintained frequent and consistent contact with his children at least until June of 1993, when the instant proceeding was commenced. He had coached the children’s football and baseball teams, participated in their religion classes and had become involved with his older son’s academic education during the 1992-1993 school year. However, there was also evidence that respondent harbored a continuing bitterness toward petitioner which he had verbalized and demonstrated to the children in a number of inappropriate ways. Respondent admitted being bitter enough to have called petitioner "a tramp” and "a low-life” in the children’s presence and, in fact, stated that he saw nothing wrong with this conduct, although he acknowledged that it had a negative effect on the children. Respondent’s mother confirmed that he had spoken negatively about petitioner in the children’s presence and that this behavior had not been helpful to the children.

Following the hearing, the presiding Judicial Hearing Officer (JHO) denied petitioner’s request for permission to relocate. Applying what he characterized as "a more restrictive view of relocation,” the JHO opined that whenever a proposed move "unduly disrupts or substantially impairs the [noncustodial parent’s] access rights to [the] children,” the custodial spouse seeking judicial consent must bear the burden of demonstrating "exceptional circumstances” such as a "concrete economic necessity.” Applying this principle to the evidence before him, the JHO found that petitioner’s desire to obtain a "fresh start” with a new family was insufficient to justify a move that would "significantly impact upon” the close and consistent relationship with his children that respondent had previously enjoyed.

On petitioner’s appeal, however, the Appellate Division reversed, holding that petitioner had made the necessary showing that the requested relocation would not deprive respondent of "regular and meaningful access to his children.” (212 AD2d 1050.) Further, the Court noted, petitioner’s proposed visitation schedule afforded respondent the opportunity for frequent and extended contact with his children. Finally, the Court found that the move would be in the best interests of the children. Accordingly, the Court ruled that petitioner should be permitted to move to Schenectady and remitted the matter to Family Court for the establishment of an appropriate visitation schedule. The final Family Court judgment from which respondent appeals awards respondent substantial weekend, summer and vacation visitation in accordance with the Law Guardian’s recommended schedule. Matter of Browner v Ken-ward

The parties to this proceeding were married in August of 1983 and had a son three years later. After marital discord led the parties to separate, they executed a stipulation of settlement and agreement in January of 1992 which gave petitioner mother physical custody of the couple’s child and gave respondent father liberal visitation, including midweek overnight visits and alternating weekends. Under the stipulation, respondent was to remain in the marital residence, which was located in "White Plains, New York, and petitioner and the parties’ son were to live with petitioner’s parents in nearby Purchase. Petitioner was required to seek prior approval of the court if she intended to move more than 35 miles from respondent’s residence. The stipulation was incorporated but not merged in the parties’ divorce judgment, which was entered in June of 1992.

In October of 1992, petitioner brought the present proceeding for permission to relocate with the couple’s child to Pitts-field, Massachusetts, some 130 miles from respondent’s Westchester County home. Petitioner requested this relief because her parents were moving to Pittsfield and she wished to go with them. Respondent opposed the application, contending that he was a committed and involved noncustodial parent and that the proposed move would deprive him of meaningful contact with his son.

A hearing was conducted over a period of several months. The hearing evidence disclosed that petitioner’s parents had been considering moving for some time and had made the final decision to do so in September of 1992, coinciding fairly closely with the loss of petitioner’s job. Petitioner testified that she had tried to find work in New York but was unable to do so. She further testified that her prospects of finding affordable housing in the Purchase area were bleak. She ultimately locoted a marketing job in Pittsfield that would give her enough income to rent a home of her own in that area. Petitioner had also investigated the facilities for children in Pittsfield and had found a suitable school and synagogue for her son.

An additional motivating factor for petitioner was the emotional support and child care that she received from her parents and that she expected to receive from her extended family in Pittsfield. According to the evidence, petitioner was somewhat dependent on her parents for financial and moral support, and petitioner’s son had become especially close to his grandparents after his own parents had separated. Further, the boy had a long-standing close relationship with his Pitts-field cousins.

Respondent argued that permission for the move should be denied because it would significantly diminish the quantity and quality of his visits with his child. Respondent noted that the move would eliminate the midweek visits that he had previously enjoyed as well as his opportunity to participate in the child’s daily school, sports and religious activities. Accordingly, respondent argued, petitioner’s proposed relocation to Pitts-field would deprive him of meaningful access to his child.

The Family Court found petitioner’s argument that she was unable to secure employment and new housing within the Westchester area to be less than convincing. The court further found that respondent had been "vigilant” in visiting his son and was "sincerely interested in guiding and nurturing [the] child.” Nonetheless, the court ruled in petitioner’s favor and authorized the proposed move, granting respondent liberal visitation rights. In so ruling, the court noted that the move would not deprive respondent of meaningful contact with his son and that, in light of the psychological evidence that had been adduced, the move would be in the child’s best interests. With respect to the best-interests question, the court stated that the parents’ separation from each other would reduce the bickering that was causing the child difficulty and would enable the child to have the healthy peer relationships that he needed. Additionally, the emotional advantages that petitioner would realize from proximity to her parents would ultimately enhance the child’s emotional well being. On respondent’s appeal, the Appellate Division affirmed, stating only that "the relocation did not deprive [respondent] of regular and meaningful access to the child” and, thus, petitioner was "not required to show exceptional circumstances to justify relocation.” (213 AD2d 400, 401.) This Court subsequently granted respondent leave to appeal.

IL

Relocation cases such as the two before us present some of the knottiest and most disturbing problems that our courts are called upon to resolve. In these cases, the interests of a custodial parent who wishes to move away are pitted against those of a noncustodial parent who has a powerful desire to maintain frequent and regular contact with the child. Moreover, the court must weigh the paramount interests of the child, which may or may not be in irreconcilable conflict with those of one or both of the parents.

Because the resolution of relocation disputes is ordinarily a matter entrusted to the fact-finding and discretionary powers of the lower courts, our Court has not had frequent occasion to address the question. We discussed the issue in general terms in Weiss v Weiss (52 NY2d 170, 174-175), in which we recognized the importance of continued regular and frequent visitation between the child and the noncustodial parent and stated that "absent exceptional circumstances * * * appropriate provision for visitation or other access by the noncustodial parent follows almost as a matter of course” (citing Strahl v Strahl, 66 AD2d 571, affd 49 NY2d 1036). We revisited the area a year later in Daghir v Daghir (56 NY2d 938), but the majority memorandum in that case merely commented on the trial court’s failure to separately consider the child’s best interests and did not otherwise elucidate the proper standard to be used in assessing requests by custodial parents for permission to relocate (see also, Priebe v Priebe, 55 NY2d 997 [upholding Appellate Division’s discretionary determination]).

Since our decisions in Weiss and Daghir, the lower courts have evolved a series of formulae and presumptions to aid them in making their decisions in these difficult relocation cases. The most commonly used formula involves a three-step analysis that looks first to whether the proposed relocation would deprive the noncustodial parent of "regular and meaningful access to the child” (e.g., Lavane v Lavane, 201 AD2d 623; Matter of Lake v Lake, 192 AD2d 751; Matter of Radford v Propper, 190 AD2d 93; Matter of Schaefer v Brennan, 170 AD2d 879; Matter of Cassidy v Kapur, 164 AD2d 513; Matter of Schouten v Schouten, 155 AD2d 461; Blundell v Blundell, 150 AD2d 321; Murphy v Murphy, 145 AD2d 857; Zaleski v Zaleski, 128 AD2d 865; Klein v Klein, 93 AD2d 807). Where a disruption of "regular and meaningful access” is not shown, the inquiry is truncated, and the courts generally will not go on to assess the merits and strength of the custodial parents’ motive for moving (see, e.g., Matter of Bennett v Bennett, 208 AD2d 1042; Partridge v Meyerson, 162 AD2d 507; Matter of Lake v Lake, supra). On the other hand, where such a disruption is established, a presumption that the move is not in the child’s best interest is invoked and the custodial parent seeking to relocate must demonstrate "exceptional circumstances” to justify the move (e.g., Matter of Lavelle v Freeman, 181 AD2d 976; Rybicki v Rybicki, 176 AD2d 867; Hathaway v Hathaway, 175 AD2d 336). Once that hurdle is overcome, the court will go on to consider the child’s best interests.

The premise underlying this formula is that children can derive an abundance of benefits from "the mature guiding hand and love of a second parent” (Weiss v Weiss, supra, at 175; accord, Matter of Radford v Propper, supra, at 99) and that, consequently, geographic changes that significantly impair the quantity and quality of parent-child contacts are to be "disfavored” (see, Matter of Farmer v Dervay, 174 AD2d 857, 858; Matter of Pasco v Nolen, 154 AD2d 774, 776; Matter of Towne v Towne, 154 AD2d 766, 767). While this premise has much merit as a tenet of human dynamics, the legal formula that it has spawned is problematic and, in many respects, unsatisfactory (see, Miller, Whatever Happened to the ”Best Interests” Analysis in New York Relocation Cases?, 15 Pace L Rev 339).

One problem with the three-tiered analysis is that it is difficult to apply. The lower courts have not settled on a uniform method of defining "meaningful access” (compare, Bennett v Bennett, supra, at 1043 [ability to maintain "close and meaningful relationship with * * * children], with Matter of Radford v Propper, supra, at 99 ["frequent and regular access”]), and even the distance of the move has not been a reliable indicator of whether the "meaningful access” test has been satisfied (compare, Rybicki v Rybicki, supra [disapproving 84-mile move], with Matter of Schouten v Schouten, 155 AD2d 461, supra [approving 258-mile move]; Murphy v Murphy, 145 AD2d 857, supra [approving 340-mile move]).

On a more fundamental level, the three-tiered test is unsatisfactory because it erects artificial barriers to the courts’ consideration of all of the relevant factors. Most moves outside of the noncustodial parent’s locale have some disruptive effect on that parent’s relationship with the child. Yet, if the disruption does not rise to the level of a deprivation of "meaningful access,” the three-tiered analysis would permit it without any further inquiry into such salient considerations as the custodial parent’s motives, the reasons for the proposed move and the positive or negative impact of the change on the child. Similarly, where the noncustodial parent has managed to overcome the threshold "meaningful access” hurdle, the three-tiered approach requires courts to refuse consent if there are no "exceptional circumstances” to justify the change, again without necessarily considering whether the move would serve the child’s best interests or whether the benefits to the children would outweigh the diminution in access by the noncustodial parent. The distorting effect of such a mechanical approach may be amplified where the courts require a showing of economic necessity or health-related compulsion to establish the requisite "exceptional circumstances” (see, e.g., Matter of Lavelle v Freeman, supra; Leslie v Leslie, 180 AD2d 620; Goodwin v Goodwin, 173 AD2d 769; Coniglio v Coniglio, 170 AD2d 477) or where the demands of a new marriage are summarily rejected as a sufficient basis for satisfying this test (e.g., Rybicki v Rybicki, supra; Richardson v Howard, 135 AD2d 1140).

In reality, cases in which a custodial parent’s desire to relocate conflicts with the desire of a noncustodial parent to maximize visitation opportunity are simply too complex to be satisfactorily handled within any mechanical, tiered analysis that prevents or interferes with a simultaneous weighing and comparative analysis of all of the relevant facts and circumstances. Although we have recognized and continue to appreciate both the need of the child and the right of the noncustodial parent to have regular and meaningful contact (see generally, Weiss v Weiss, supra), we also believe that no single factor should be treated as dispositive or given such disproportionate weight as to predetermine the outcome. There are undoubtedly circumstances in which the loss of midweek or every weekend visits necessitated by a distant move may be devastating to the relationship between the noncustodial parent and the child. However, there are undoubtedly also many cases where less frequent but more extended visits over summers and school vacations would be equally conducive, or perhaps even more conducive, to the maintenance of a close parent-child relationship, since such extended visits give the parties the opportunity to interact in a normalized domestic setting. In any event, given the variety of possible permutations, it is counterproductive to rely on presumptions whose only real value is to simplify what are necessarily extremely complicated inquiries.

Accordingly, rather than endorsing the three-step meaningful access exceptional-circumstance analysis that some of the lower courts have used in the past, we hold that each relocation request must be considered on its own merits with due consideration of all the relevant facts and circumstances and with predominant emphasis being placed on what outcome is most likely to serve the best interests of the child. While the respective rights of the custodial and noncustodial parents are unquestionably significant factors that must be considered (see, Strahl v Strahl, 66 AD2d 571, affd 49 NY2d 1036, supra), it is the rights and needs of the children that must be accorded the greatest weight, since they are innocent victims of their parents’ decision to divorce and are the least equipped to handle the stresses of the changing family situation.

Of course, the impact of the move on the relationship between the child and the noncustodial parent will remain a central concern. Indeed, even where the move would leave the noncustodial parent with what may be considered "meaningful access,” there is still a need to weigh the effect of the quantitative and qualitative losses that naturally will result against such other relevant factors as the custodial parent’s reasons for wanting to relocate and the benefits that the child may enjoy or the harm that may ensue if the move is or is not permitted. Similarly, although economic necessity or a specific health-related concern may present a particularly persuasive ground for permitting the proposed move, other justifications, including the demands of a second marriage and the custodial parent’s opportunity to improve his or her economic situation, may also be valid motives that should not be summarily rejected, at least where the over-all impact on the child would be beneficial. While some courts have suggested that the custodial spouse’s remarriage or wish for a "fresh start” can never suffice to justify a distant move (see, e.g., Elkus v Elkus, 182 AD2d 45, 48; Stec v Levindofske, 153 AD2d 310), such a rule overlooks the value for the children that strengthening and stabilizing the new, postdivorce family unit can have in a particular case.

In addition to the custodial parent’s stated reasons for wanting to move and the noncustodial parent’s loss of access, another factor that may well become important in a particular case is the noncustodial parent’s interest in securing custody, as well as the feasibility and desirability of a change in custody. Obviously, where a child’s ties to the noncustodial parent and to the community are so strong as to make a long-distance move undesirable, the availability of a transfer of custody as realistic alternative to forcing the custodial parent to remain may have a significant impact on the outcome. By the same token, where the custodial parent’s reasons for moving are deemed valid and sound, the court in a proper case might consider the possibility and feasibility of a parallel move by an involved and committed noncustodial parent as an alternative to restricting a custodial parent’s mobility.

Other considerations that may have a bearing in particular cases are the good faith of the parents in requesting or opposing the move, the child’s respective attachments to the custodial and noncustodial parent, the possibility of devising a visitation schedule that will enable the noncustodial parent to maintain a meaningful parent-child relationship, the quality of the life-style that the child would have if the proposed move were permitted or denied, the negative impact, if any, from continued or exacerbated hostility between the custodial and noncustodial parents, and the effect that the move may have on any extended family relationships. Of course, any other facts or circumstances that have a bearing on the parties’ situation should be weighed with a view toward minimizing the parents’ discomfort and maximizing the child’s prospects of a stable, comfortable and happy life.

Like Humpty Dumpty, a family, once broken by divorce, cannot be put back together in precisely the same way. The relationship between the parents and the children is necessarily different after a divorce and, accordingly, it may be unrealistic in some cases to try to preserve the noncustodial parent’s accustomed close involvement in the children’s everyday life at the expense of the custodial parent’s efforts to start a new life or to form a new family unit. In some cases, the child’s interests might be better served by fashioning visitation plans that maximize the noncustodial parent’s opportunity to maintain a positive nurturing relationship while enabling the custodial parent, who has the primary child-rearing responsibility, to go forward with his or her life. In any event, it serves neither the interests of the children nor the ends of justice to view relocation cases through the prisms of presumptions and threshold tests that artificially skew the analysis in favor of one outcome or another.

Rather, we hold that, in all cases, the courts should be free to consider and give appropriate weight to all of the factors that may be relevant to the determination. These factors include, but are certainly not limited to each parent’s reasons for seeking or opposing the move, the quality of the relationships between the child and the custodial and noncustodial parents, the impact of the move on the quantity and quality of the child’s future contact with the noncustodial parent, the degree to which the custodial parent’s and child’s life may be enhanced economically, emotionally and educationally by the move, and the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements. In the end, it is for the court to determine, based on all of the proof, whether it has been established by a preponderance of the evidence that a proposed relocation would serve the child’s best interests.

¡IL

Turning finally to the cases before us, we conclude that the orders of the courts below, which approved each of the petitioners’ requests to move, should be upheld. In Tropea, petitioner sought permission to relocate from Onondaga County to the Schenectady area so that she could settle into a new home with her fiancé and raise her sons within a new family unit. The Appellate Division found that the move was in the children’s best interest and that the visitation schedule that petitioner proposed would afford respondent frequent and extended visitation. We find no reason derived from the record to upset the Appellate Division’s determinations on these points (see, Daghir v Daghir, supra, at 940). It is true that the Court considered whether the relocation would deprive respondent of "meaningful access” to his children. However, it is apparent from the remainder of its writing that the Court did not treat that factor as a threshold test barring further inquiry into the salient "best interests” question.

We note that respondent has offered no persuasive legal reason for disturbing the Appellate Division’s finding that the proposed relocation would be in the children’s best interest. Indeed, in this appeal, respondent’s arguments are directed almost entirely to petitioner’s purported "unclean hands” in developing a relationship with a person she met before the marriage was dissolved and in choosing to marry that individual after her divorce from respondent. As is evident from our earlier discussion, relocation determinations are not to be made as a means of castigating one party for what the other deems personal misconduct, nor are the courts to be used in this context as arbiters of the parties’ respective "guilt” or "innocence.” Children are not chattel, and custody and visitation decisions should be made with a view toward what best serves their interests, not what would reward or penalize a purportedly "innocent” or "blameworthy” parent.

Our analysis in Browner v Kenward is somewhat different. The Appellate Division in Browner found that the proposed move did not deprive the noncustodial parent of regular and meaningful access to his child and that it was therefore not necessary to weigh the validity and strength of petitioner’s reasons for moving against the significant change in the parent-child relationship that the move would entail. The Court’s methodology was thus at variance with the open-ended balancing analysis that the law requires. However, respondent’s only argument in this Court is that the Appellate Division misapplied the three-tiered Matter of Radford v Propper (supra) test to the particular facts of his case. Specifically, respondent argues that the 130-mile move from Westchester County to Pittsfield will eliminate his midweek visitation opportunity, reduce his ability to participate in his son’s religious worship and diminish the quality of the weekend visits he has with his son. While these losses are undoubtedly real and are certainly far from trivial, it cannot be said that they operated to deprive respondent of a meaningful opportunity to maintain a close relationship with his son. Hence, respondent was not entitled to an order reversing the outcome below and denying petitioner the permission to relocate that she sought. We note that the Family Court found that the proposed relocation in Browner was in the child’s best interests and the Appellate Division did not disturb that finding.

Accordingly, in Matter of Tropea v Tropea, the judgment of the Family Court and the prior nonfinal order of the Appellate Division brought up for review should be affirmed, with costs. In Matter of Browner v Kenward, the order of the Appellate Division should be affirmed, with costs.

Chief Judge Kaye and Judges Simons, Bellacosa, Smith, Levine and Ciparick concur.

In Matter of Tropea v Tropea: Judgment of Family Court appealed from and order of the Appellate Division brought up for review affirmed, with costs.

In Matter of Browner v Kenward: Order affirmed, with costs.

      . [1] The separation agreements in both Tropea and Browner require only that the custodial parent apply for judicial approval before moving out of a specified area without making any mention of criteria or standards. A geographical relocation restriction agreed to by the parties and included in their separation agreement might be an additional factor relevant to a court’s best interests determination.

      . Significantly, the Appellate Division’s ruling in this regard did not represent a reversal of any contrary first-level factual finding by the nisi prius court. The Family Court J.H.O. did not reach the best interest question, since, in his view, petitioner’s failure to show “exceptional circumstances” to justify the move obviated the need for further inquiry.