¹ Taken from http://www.nycenet.edu/daa/SchoolReports/03asr/319214.pdf

² Respondent to date has refused to visit Baby A at her home of the past three years in Delaware or even visit her school, and has always placed the onus on Appellant to transport Baby A when Respondent wants to see her in New York.

Consistent with Tropea, Dr. M also provided for extended summers and holiday visitations for Respondent. Family Court Referee A completely ignored such a realistic and quite common extended visitation schedule in cases such as this, in contravention to what this Department and cases in this State have held for a long time---that a mere decrease in frequency of visits does not deprive the non custodial parent of regular and meaningful access to the child. Specifically the courts will accommodate the complaining parent's schedule exactly as Dr. M has proposed-with extended holidays and summers. Notably, Dr. M even proposed, and Appellant agreed, that Respondent can even visit Baby A every month at her home in Delaware. That was not good enough for Respondent, but the law does not agree with Respondent's unrealistic and unwavering attitude. For example, in Ladizhensky v. Ladizhensky, 184 A.D.2d 756, 758, 585 N.Y.S.2d 771, 773 (2d Dep't 1992), the mother sought to relocate from New York to Kansas City. The court noted that the mother "expressed the desire to promote the [father's] visitation and has also provided a liberal visitation schedule which increase[d] his summertime visitation...." Id. Although that schedule reduced the frequency of the father's visits, the court found that the proposed visitation schedule afforded him regular and meaningful access to his child. Id.. Similarly, in Potier v. Potier, 198 A.D.2d 180, 604 N.Y.S.2d 77 (1st Dep't 1994), the defendant sought to enjoin the plaintiff from relocating with the parties' child from New York City to Pennsylvania. The court expressly held that "although defendant's midweek visitation has necessarily been diminished, the court [below] has increased his visitation in other respects." Id. (emphasis added). See also Smith, 187 A.D.2d at 713, 590 N.Y.S.2d at 303 (change in visitation, as a result of custodial parent's move to Delaware, from every weekend to alternate weekends, Jewish holy days, one half of Christmas recess and summer months, was a liberal visitation schedule which did not deprive non custodial parent of regular and meaningful access); Cassidy, 164 A.D.2d at 516, 564 N.Y.S.2d at 583 (reduction of the frequency of visitation rights, from original liberal overnight visit and equal holidays to alternate weekends, summer visits and equal share of Christmas and Easter, provided meaningful and regular access).

    10.         Many cases have recognized that relocations of distances comparable to, or even greater than, that of Appellant's move are reasonable and preserve the non custodial parent's meaningful and regular access to the child. For instance, in Niemiec, 203 A.D.2d at 732, 610 N.Y.S.2d at 656, the court held that a 120 mile relocation was allowed. Similarly, in Cassidy, 164 A.D.2d at 516, 564 N.Y.S.2d at 583, the court allowed a move of 190 miles to Connecticut because the move did not deprive the non custodial parent of meaningful access to the child. In Smith, 187 A.D.2d at 713, 590 N.Y.S.2d at 303, a custodial parent's move from New York to Delaware was deemed to preserve the non custodial parent's regular and meaningful access to the parties' child. Finally, in A.F. v. N.F., 156 A.D.2d 750, 754, 549 N.Y.S.2d 511, 514 (2d Dep't 1989), the court held that a move to Massachusetts would "not unreasonably interfere with the visitation by the father."

    11.         Additional cases have consistently held that relocations of similar or greater distances than Appellants do not unreasonably interfere with a non custodial parent's visitation right. See e.g., Von Ohlen v. Von Ohlen, 178 A.D.2d 592, 594, 577 N.Y.S.2d 662, 663 (2d Dep't 1991) (noting that despite the mother and child's move from New York to Arkansas, the father could "maintain meaningful visitation" with the child after relocation); Reyes v. Ball, 162 A.D.2d 770, 771, 557 N.Y.S.2d 683, 684 (3d Dep't 1990) (custodial parent's relocation to Wyoming did not unreasonably disrupt [the non custodial parent's] relationship with his [children ages eight and twelve]"); Schouten, 155 A.D.2d at 462, 547 N.Y.S.2d at 128 (move of 258 miles, requiring the non custodial parent to drive six hours, is a "reasonable distance," would "not be impracticable" and would not deprive non custodial parent of regular and meaningful access to his children); Blundell, 150 A.D.2d at 324, 540 N.Y.S.2d at 85253 (a two and a half hour drive was a reasonable distance and would not effectively curtail visitation rights); Murphy, 145 A.D.2d at 858, 535 N.Y.S.2d at 846 (relocation of some 340 miles away from non custodial parent did not substantially impair visitation rights); Zaleski v. Zaleski, 128 A.D.2d 865, 866, 513 N.Y.S.2d 784 (2d Dep't 1987) (move from Long Island to Syracuse would "not effectively curtail the visitation rights of the father or deprive him of regular access to the children").

B.     The Family Court Order Defies the Court of Appeals

          Holdings in Tropea

    12.     And of course, all of the cases culminated in Tropea which mandated the lower court to make certain considerations at the conclusion (emphasis added) of the hearing before making a relocation order:

        "In the end, it is for the court to determine, based on all of the proof,

                    (emphasis added) whether it has been established by a preponderance of

                    the evidence that a proposed relocation would serve the child's best interests."

This Department has consistently held that only after a full hearing can the lower court decide a relocation case based on sound and substantial factors. Reilly v. Schmidt, 295 A.D.2d 436 [2nd Dept.2002](allowed mother to move to Connecticut based upon the Supreme Court's determination was supported by a sound and substantial basis in the record after full hearing; Kime v. Kime, 302 A.D.2d 564 [2nd Dept.2003](2d dept affirmed lower courts relocation order based upon an in depth Tropea analysis at the conclusion of the hearing); Confort v. Nicolai, 309 A.D.2d 861 [2004 N.Y. Slip Op. 50658(U),2d Dept.2003](2d dept noted that lower court considered all the relevant factors in Tropea).

13. There has been no conclusion of this hearing. The Family Court Order confirms:

        "The completion of the trial and the final decision will not be accomplished for at

           least a few more months."

Forgive me for bolding that sentence but I had to as it just screams Constitutional Violation. It also tells us that the Family Court certainly was not reading Tropea or the line of Second Department cases stating a concluded full trial is required, not something in the middle. Clearly a full and complete hearing requirement mandated by Tropea is consistent with a citizen's due process rights, and naturally Tropea of all cases would primarily be concerned with due process as forcing relocation touches upon many fundamental rights, such as marriage and travel. Thus, since the family Court case was not concluded then under Tropea no such relocation order can stand and Appellant submits the order is as null and void and an immediate stay is mandated.

    14.         Not only did the Family Court fail to conclude the hearings before issuing its relocation Order, but the Order just smacks in the face of Tropea and all it stands for. As much as the Family Court threw a cite to Tropea in its Order, it means nothing when the Family Court completely disregards what it stands for-- favoring mobility, especially when one parent remarries. The Family Court also refused to acknowledge that Tropea provides alternatives when one party needs to move, such as giving the other party extended visitations as well as recognizing that the non-custodial parent can certainly be ordered to take some responsibility and take a plane like a grown man to see his daughter (something Respondent here refuses to do).

    15.         The common denominator consistently stated in Tropea's decision was the importance of mobility for the custodial parent and the child, especially when the custodial parent remarries and the child is involved in the new family unit; to wit:

        "....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 739. and

        "...it may be unrealistic in some cases to try to preserve the

        non custodial 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." at 740

Clearly, Tropea was based on two cases and in each case the Tropea court affirmed the mobility of the custodial Mother and Child where the mother relocated because of a remarriage and the other mother relocated for economic reasons, noting in each case that the Father's visitation schedule could realistically be modified to extended holiday and summer visitations when weekly or every other week visitations just did not fit into the practicality of a parent's right to move.

    16.     The present Order ,which is the same as the past order stayed by this Court, not only completely disregards Tropea as it was made before the hearings were final but is completely one-sided, considering only the Respondent father's interests -not the Appellant mother's right to mobility and marriage, nor the child's. It is an Order that by law should not be in effect at this time nor any time, no less should never have been issued in the first place. It is an Order that makes every effort to accommodate only the father, never considering the child or the Appellant. And when we really get to the meat of this Order, we see that it is concerned with one thing only-and that is that the Family Court felt that because the child is tired when she arrives in New York for visitation then the answer was to force her to move from her home and family and enroll in a New York School. That is absurd and against all rationale in relocation cases. The right result under the law of this State would be to follow the Court Appointed expert's opinion, Dr. M, that gave the Respondent extended visitation and allowed Appellant and Baby A to be mobile, to remain married, to go to a school of their choice and to live their life with their family in Delaware as they have for the past three years.

C.    The Family Court Order Defies Every Experts' Testimony

        Not to Relocate Appellant & Baby A from Delaware

    17.     At this point we have a family Court Order forcing a backwards relocation before the hearings are even completed, which is against the law, Its is a decision that completely ignores the lower court's own expert's realistic approach in accordance with the law which was to give the father extended visitations. But it gets worse, Referee R ignored the testimony of every expert in this case that agreed with Dr. Marcus, concluding that Baby A should not relocate to New York, that the travel was not harmful and that Appellant never interfered with visitation:

(a) On April 15, 2002, Psychiatrist V testified he met both Appellant

and Baby A. Dr. R specifically warned Referee R of the harm to

come if Appellant and Baby A were removed from their home in Delaware:

"...i think to forcibly keep her separated from her husband, to whom she is legally

married, and with whom she has established a stable relationship, would be

stressful and harmful to her and her child." (Exhibit "H"-Tr. 12,21-25)

Each time he was asked whether he had any concerns about Appellant's parenting

skills, including being asked by Referee R, he stated "None whatsoever."

(See April 15, 2002 Transcript pages as Exhibit "H"-Tr 82.13-17;83, 6; 11-12,

24-4; 14, 22-24). In response to questioning regarding whether Appellant was

interfering with Respondent's access to the child, he testified that Appellant

"definitely" wants the child involved with the father and that the long trips from

Delaware to New York will not have any adverse effect on the child (Exhibit "H",

Tr 14,4-10; 15, 12-20)

(b) On April 23, 2002 Dr. L, an expert in family therapy and the family

therapist for Appellant, Baby A and their new family of Mr. L

(Appellant's Husband and Baby A's step-father) and Baby A's step

brother and sister in Delaware, testified that it would be detrimental to take her

away from them:

"To end the relationship...there is going to be a grieving process...It could have life-

long effects, because there's the issue of trust, then, in future relationships, there is

attachment issues that can result from it... there is a great deal of loss that would

go on. (Exhibit "I"-Tr 17-18, 20-8; 19,3-16)

She also testified that she never saw any signs that Appellant would interfere

with Respondent's visitation and (Exhibit "I"-Tr 16,15-18)

(e) On February 5, 2004, Dr. Richard W, the head of XXXXX

Day School in Delaware where Baby A attended since September,2003

and an educational expert, testified that Appellant "is an exemplary mom; an

engaged parent--and an individual who is trying to identify in her life with the

goals and purposes of the school."(Exhibit "J", Tr 30, 19-22).

(f) The Court appointed law guardian, Marc M recognized the harm

to Baby A when Respondent tried to pull her out of School in April, 2004 and

acknowledged that Baby A formed bonds in Delaware. Mr. M interjected:

"Yeah, I'm opposed. There's only a little bit of school left. Now with all the

stuff the little girl has to deal with, now if we take her away from whatever

friends--she must have, formed, friendships, she's formed in class and the

teachers know her and so on and so on. For her to now be yanked out of that

school and put into a new school where all these kids have already interacted

for all these months, that's terrible. I can't go along with that."(Exhibit "K", Tr 109,9-19).

(g) On April 16, 2002 Barbara C an expert in psychotherapy, who had two

years consistent contact with Appellant, Baby A and Appellant's Husband Mr.

L testified that Appellant has a "good, stable relationship" with her present

husband and a "wonderful relationship" with Baby A (Exhibit "L", Tr 55, 2-6; 83, 6-23). She testified that

Appellant wants Baby A to have a relationship with

Respondent (Exhibit "L", Tr 69, 22-25; 74, 9-12) and that the best scenario for

Appellant and Baby A would be that they live in Delaware with their Husband

and step-father because "he has a stable home environment to offer Jane and

Baby A in a big enough space, which she doesn't have here."(Exhibit "L", Tr 104,6-8) and

testified:

"The best scenario, I believe, would be for Jane to have--to be the custodial parent,

have custody of A. And to be able to relocate with her husband. So that the

marriage can remain viable and on a daily basis. And that all the children can be together. Because I think Jane is a positive influence for his children as well. (Exhibit "L", Tr. 104, 12-18).

She further testified that Appellant's household is

stable and that stability is crucial to Baby A's development (Exhibit "L", Tr 123, 11-15)

18. The Tropea court particularly recognized the importance to the child of "stregthening and stabilizing the new post divorce family unit" at 739. The court in fact reasoned that if the custodial parent opposes the move so much then an option would be to have the custodial parent move closer to the child instead of restricting the child's and her custodial parent's mobility. It stated that a parent opposing the custodial parent's relocation can have visitation increased by extended summer and school vacations. at 738.

    19.     Every expert's warnings that Family Court Referee R  ignored came true. Baby A was ripped from her family and home in Delaware because of Referee R's order and has since deteriorated along with Appellant. On September 21, 2004 Board Certified Adult, Child and Forensic Psychiatrist Dr. K met with Appellant and Baby A to analyze and deal with the problems they have resulting from their court ordered forced move. He concluded that the move was detrimental to the parties and that the present "situation for Baby A is stressful and poses a substantial risk of future harm unless addresses promptly" (See September 24, 2004 Affidavit of Dr. Kaplan-Exhibit "E").

20. The amount of undue stress put upon Appellant and Baby A by Referee R's order is outrageous when she acknowledges that they have lived in Delaware with their new family for the past three years and then ignores every expert and the law that a realistic alternative exists of extended summers, holidays and monthly visits are in order for Respondent. Referee R then attempts to justify her Order by explaining that the Respondent just did not receive enough visitation; however, that is completely untrue and she fails to include the fact that when this litigation started in the Family Court, 5 unreasonable years ago, the Respondent had domestic violence issues resulting in his stipulating in court on April 12, 1999 that he would receive counseling and that he agreed that Appellant should have custody of Baby A, which was so ordered (Exhibit "P"). Truly in the beginning of the parties' relationship there were violence issues created by Respondent that by his own misconduct rightfully limited visitation until he sought help; however, since then Respondent testifies that he has not had any interference with his visitation.

D.     Respondent Chose Not to Visit Baby A

        & He testified that He had No problems with Visitation

    21.     Not only does every expert agree that Baby A should remain with her new family in Delaware and that Appellant is an excellent caretaker, but Respondent also agreed that Appellant should have sole legal and physical custody in November, 2000. There was never an issue until Appellant married her present husband in 2000. Since then she and Baby A resided in a better home and community in Delaware with their new family. During their new residence in Delaware, Respondent testified in April, 2002 that there were no problems with visitation as Appellant brought Baby A to New York to see him, he had daily phone access to Baby A in Delaware and he was even invited to visit Baby A in Delaware, but he has since chosen never to take this opportunity and ever visit Baby A, her friends, home or her school (Exhibit "M", Tr. 60-61, 24-7 & 91, 15-17; 63, 22-24; 76, 6-7). Respondent's admissions are vital to the fact that no Order was required to relocate Baby A to New York:

Q. Have you ever been to the L house in Delaware?

A. No.

Q. And isn't it true that you've been invited there?

A. Correct.

Q. But you yourself never chose to go and see where your daughter sleeps sometimes; is that correct?

A. That is correct. (Tr. 60-61, 24-7)

Respondent further admits that he was invited to Appellant's new household with Baby A, admitting Appellant's more than reasonable invitations of overly liberal visitation extensions to Respondent, stating that : "If I was available to be a guest in the L home in Delaware, I would hope that I would be invited to be a guest in whatever residence she'd be in New York." Of course, Respondent shamelessly attempts to make this invitation based upon a forced move to New York.

There was never a reason for Respondent's demands to force Baby A from her home, as he admits he never had visitation problems;

Q. And now, in the past year, have you had any problems with visitation?

A. Not in terms of physical custody, no. (Tr. 63, 22-24)

and always had daily phone contact, stating "...I call my daughter on a day-to-day basis and it's always in Delaware." (Tr 76, 6-7).

22. The Family Court completely ignored these admissions of fact from Respondent that there is no barrier to meaningful access to the child, and meaningful access is the key in Tropea. Instead, the Family Court creates an illusory basis that since the child is tired then she must move to New York away from her family!

E. THE FAMILY COURT ORDER IMPERMISSIBLY VIOLATES APPELLANT'S

CONSTITUTIONAL RIGHTS OF TRAVEL, MARRIAGE, AND FAMILIAL PRIVACY,

WITHOUT NEED OR JUSTIFICATION & Without Due Process

    23.         The Family Court Order compels Appellant to either move or lose custody of her child without a hearing to determine custody. Appellant's Due Process Rights are violated when a full custody hearing has never concluded and most importantly, never have facts been raised nor heard as to the recent fitness of the biological father to take custody of the daughter. The Order gives an undue alternative that either Appellant moves to New York or the father gets custody-such a choice is malicious to impose upon Appellant to choose between her husband in Delaware or moving back here with her daughter. And it is outright baseless for an Order to make a present determination of future rights either based on presumed facts, or is imposed regardless of the facts. Either way, the Family Court Order denies due process. Cleveland Board of Education v. LaFleur, 414 U.S. 632 (1974); Bell v. Burson, 402 U.S. 535 (1971); Mathews v. Eldridge, 424 U.S. 319 (1977); Stanley v. Illinois, 405 U.S. 645 (1972); Zablocki v. Redhail, 434 U.S. 374 (1978). Moreso, such denial of Appellant's rights as the custodial parent of the child is outrageous when Appellant has a legitimate expectation, as a parent and caregiver, that her rights will not be forfeited without a hearing. Smith v. Organization of Foster Families, 431 U.S. 816 (1977); Perry v. Sinderman, 408 U.S. 593 (1972); Bd. of Regents v. Roth, 408 U.S. 564 (1972); May v. Anderson, 345 U.S. 528, 534 (1953). Naturally, we also discussed New York's long line of cases herein above and Tropea, all requiring a full and complete hearing which is in perfect harmony with Supreme Court law requiring full hearings in support of Amendment XIV s 1 of our Constitution, providing:

"All persons born or naturalized in the United States and subject to the jurisdiction

thereof, are citizens of the United States and of the State wherein they reside.

No State shall make or enforce any law which shall abridge the privileges or

immunities of citizens of the United States; nor shall any State deprive any person

of life, liberty, or property, without due process of law; nor deny to any person within

its jurisdiction the equal protection of the laws."

The Family Court Order defies our Constitution, defies our State's laws and defies its own expert's recommendations against a forced relocation to New York. The Order was void from the start and can not stand another minute.

    24.         There is no reason for the Order to defy and interfere with Appellant's fundamental rights to travel, marriage and parent.     Every United States citizen has a virtually unqualified right to migrate, resettle, find a new job, and start a new life. Shapiro v. Thompson, 394 U.S. 618, 629-31 (1969). The right to travel is a "Fundamental Right" guaranteed by our Constitution. See San Antonio School District v. Rodriguez, 411 U.S. 1, 28, 93 S.Ct. 1278, 1294, 36 L.Ed.2d 16. The custodial parent's constitutional right to interstate travel is addressed in many Supreme Court decisions and nationwide. Jones v. Helms, 452 U.S. 412, 418-19 (1981); United States v. Guest, 383 U.S. 745, 757-59 (1966); Edwards v. California, 314 U.S. 160, 177-81 (1941). Cf. Edward Sivin, Note, Residence Restrictions on Custodial Parents: Implications for the Right to Travel, 12 RUTGERS L.J. 341, 348-50 (1981) (recommends an intermediate level of scrutiny for interstate relocation because custodial rights are an important value).

    25.         State laws restricting travel based upon a parent's status as custodian are an unconstitutional infringement. See Carlson, 280 Cal. Rptr. at 840 (indirect infringement because only custodial parent's status as custodian at stake); Zwernemann v. Kenny, 563 A.2d 1139, 1141 (N.J. Super. Ct. App. Div. 1989) (found that denial of permission to remove does not bar travel, but merely imposes legal consequences on that right). Although the right to travel is commonly discussed in context of interstate movement, a right to international travel, though not as fundamental of a right, is also recognized. Califano v. Torres, 435 U.S. 1, 4 n.6 (1977) ("the 'right' to international travel has been considered to be no more than an aspect of the 'liberty' protected by the Due Process Clause of the Fifth Amendment" and "can be regulated within the bounds of due process."); Kent v. Dulles, 357 U.S. 116, 126-27 (1957). And in this jurisdiction, and in fact this Department, in Hemphill v. Hemphill, 572 N.Y.S.2d 689 (App. Div. 1991) a custodial parent's right to remarry, travel, and generally live their lives was accounted for in allowing a parent to move to England.

    26.         Thus, any penalty imposed upon the exercise of right to travel, which is a federally protected right, is subject to heightened scrutiny because it is a personal right fundamental to our system of government. U.S.C.A. Const.Amend. 14. Appellant argues in favor of the need here for a compelling state interest review because the Family Court Order disadvantages custodial parents who exercise their constitutional rights to travel and marry else they loose their custodial rights to the child--there is no worse a penalty other than imprisonment, which in effect this relocation order imprisons Appellant and the child to New York; they can not live their life freely as they choose anymore and they are ripped from their family and home. The role of our courts is not to tear apart families and make life harder for our citizens-at all costs, the courts must acknowledge the right to make a better life for yourself in these difficult times-not make people's lives more difficult.

    27.         The right to marry is another of our fundamental rights (Loving v. Delaware, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010). Marriage is a fundamental right where freedom of personal choice is protected to a heightened degree. Loving, id.; Zablocki v. Redhail, 434 U.S. 374, 98 S.Ct. 673, 54 L.Ed.2d 618; Griswold v. Connecticut, 381 U.S. 479, 486, 85 S.Ct. 1678, 1682, 14 L.Ed.2d 510, supra; People v. De Stefano, 121 Misc.2d 113, 121, 467 N.Y.S.2d 506). Thus, an expanded zone of privacy attaches to the marital relationship (Griswold v. Connecticut, 381 U.S. 479, 485, 486, 85 S.Ct. 1678, 1682, 14 L.Ed.2d 510, supra ). Clearly then absent compelling state interests, interference by the state with the intimacies of the marriage relationship violates this right to privacy. Appellant contends a forced separation from her husband by order of the Family Court is an interference with her right to marry because of her custodial position.

    28.         Appellant wants to live with her family in Delaware. She has custody of Baby A and has the right to travel from Delaware to New York if she chooses so as to so as to keep her home, family and life she created in Delaware, which is a better life for her and Baby A, in a 5 bedroom house with siblings and a husband who provides for this family, as well as Baby A benefits from a private education there. The Constitution protects the fundamental right of travel. Shapiro v. Thompson, 394 U.S. 618 (1969). There is also a constitutional right to marry, to create a new family and to enjoy the privacy of that familial association. The Supreme Court has many times emphasized the constitutional status and importance of the family. See Stanley v. Illinois, 405 U.S. 645 (1972); Meyer v. Nebraska, 262 U.S. 390 (1923). Traditionally and constitutionally family association is effected by the right to marry, itself an independent constitutional right. Loving v. Delaware, 388 U.S. 1 (1967). The Supreme Court emphasized the primacy of the parent over the state in caring for children within a family. Prince v. Massachusetts, 321 U.S. 158, 166 (1944); Wisconsin v. Yoder, 406 U.S. 205 (1972). These rights rely on the central right to privacy, also and independently protected by the Constitution. In Planned Parenthood v. Casey, 112 S. Ct. at 2807, this Court said that:

        "Our law affords constitutional protection to personal decisions relating to marriage,

         procreation, contraception, family relationships, child rearing and education.... These

        matters, involving the most intimate and personal choices a person may make in a

        lifetime, choices central to personal dignity and autonomy, are central to the liberty

        protected by the Fourteenth Amendment."

Appellant's rights should not be disregarded by an unreasoned Family Court Order. That Order must be stayed immediately and pending this motion and appeal as undoubtedly the Order is in error in numerous instances and will not stand.

F.     THIS COURT GRANTED A STAY ON A SIMILAR PRIOR

        ORDER OF REFEREE R

    29.         This Court recognized the law of Tropea by issuing a Stay on November 25, 2003 against the previous duplicate Family Court Order. We beg this Court to put itself in the position it was on November 25, 2003 when this it honorably upheld the law on a prior similar Order of Family Court Referee R, to wit:

"ORDERED that the motion is granted and enforcement of the Order requiring

the subject child to reside in New York with the appellant pending completion

of the trial and requiring the child to be enrolled in a school in New York City is

stayed pending the hearing and determination of the appeal..." (Exhibit " N")

I beg this Court to recognize again that we are at the same exact point--the hearings are not concluded yet the family Court issued an Order relocating Baby A and her mother "pending completion of the trial". This Court must recognize again the harm it obvioulsy recognized in November, 2003 and grant the stay today, as now the harm has become a reality to Appellant and Baby A. Dr. K's psychological report of September 24, 2004 confirms the harm and every expert testified that this damage to Baby A and Appellant would occur if they were ripped from their family, home and community of three years. And so too does the law of this State recognize the harm done when such an order is made before completion of the hearings.

III. EXPLANATION OF PRIOR COUNSEL'S UNINTENDED NEGLIGENCE

    30.     With respect to the first stay that former counsel failed to perfect, I beg in the interests of justice and for compelling reason that Appellant and the child should not suffer at the expense of their prior counsel's, Ms. F, negligence. Ms. F admits her negligence in her September 8, 2004 Reply papers at pages 3-4, paragraph 9, filed with this Court and made a part of these proceedings, that "I have apologized to this Court for my failure to complete the appeal we brought last year...Having learned this lesson I will complete the process this time."; Appellant realized that Ms. F needed to be replaced with appropriate counsel; especially after Ms. F just informed Appellant on September 18, 2004 that her failing to withdraw last year's appeal was "my big mistake" (referring to herself). Appellant hired me on the spot.

    31.     Your Affirmant acknowledges that prior counsel's conduct may be deemed disrespectful and show indifference to the Court and its rules; however, I respectfully beg that at all costs the right decision needs to be found here not just for Appellant and Baby A, but for all children and parents in this detrimental, confusing situation that only the wisdom of this Court can fix. Appellant and Baby A's rights under Tropea and their Constitutional rights as outlined herein as well as their rights to be heard for an immediate stay due to irreparable harm to the child should not be prejudiced or lost because of some very bad lawyering of prior counsel. It is the duty of myself as an officer of this court and the courts also to insure our citizen's rights are protected under the law and the Constitution. I therefore beg this Court to acknowledge the errors of the Family Court Order and the issues resulting therefrom.

IV. CONCLUSION

    32.         Appellant shows herein, upon clear and conclusive grounds, that an immediate stay of the Family Court Order is a must as it violates the law of this State in Tropea as well as numerous due process and constitutional issues that must be addressed. Most importantly, the Family Court Order does not anywhere consider the best interests of the child as it actually dismisses every expert's opinion, even its own expert, not to relocate Baby A from Delaware and her family and siblings there and then on top of that infringes on Appellant's rights to travel, marriage and parent. The Order also was made without concluding the hearings which are ongoing this very moments and it predetermines custody to the biological father if Appellant does not relocate without a hearing on his recent fitness-all violating due process rights of Appellaant and definitely not in the best interests of the child. Because the Order is so in error and unbalanced, a stay must immediately be granted else for every minute that Order is allowed to stand then Appellant and Baby A's rights under the law and the Constitution are being infringed and the loss of those rights for even a minute more is a great loss for the respect of our law and guaranteed rights, which must be upheld, not disposed of.

        WHEREFORE, it is respectfully submitted that the Court immediately stay the August 19, 2004 Order of the Family Court Referee R until this motion is decided and until the appeal is completed, and for such other and further relief as this Court may deem just and proper.

Dated:  New York, New York Yours, etc.,

September 28, 2004

______________________

Susan Chana Lask, Esq.

Attorney for Plaintiff-Respondent

853 Broadway, Suite 1516

New York, NY 10003

(212) 358-5762

Marc M, Esq.

11 College Place

Rockville Centre, NY 11570

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