—Order, Supreme Court, New York County (Phyllis Gangel-Jacob, J.), entered on September 1, 1993, which confirmed the Special Referee’s report only to the extent that it recommended that there be no change in the commencement time for appellant’s weekend visitation, and disaffirmed the report in all other respects, and granted permission for defendant to move the custodial residence to New Haven, Connecticut, is modified, on the law, the facts, and in the exercise of discretion, to the extent of confirming the report in its entirety, and otherwise affirmed, without costs.
This appeal arises from an application by the respondent mother to alter the terms of a separation agreement that survives the decree of divorce. The parties have two children, Hannah and David, ages ten and eight. The motion court referred the issues to a Special Referee to hear and report on the application of respondent to relocate the custodial residence to New Haven, Connecticut from New York City, and to modify the terms of visitation. The Special Referee recommended that the application be denied. The motion court disaffirmed the report of the Special Referee and granted the application almost in its entirety. We reverse and confirm the report.
The Special Referee conducted four days of hearings that included extensive testimony by the parties, the children’s respective therapists, the Headmaster of the Day School the children attended, and in camera interviews with the children. We are satisfied that the Referee’s report is well supported by the record when considered in light of applicable legal standards.
[196] The threshold issue before the motion court was respondent’s application to move the custodial residence to New Haven, Connecticut from Manhattan. The separation agreement, dated February 28, 1992, provides: "It is the Wife’s intention to reside within a 30 mile radius of her present residence with the Children ('the Radius Area’). For so long as the husband resides in the Radius Area, the Wife agrees not to remove the residence of the Children from the Radius Area without first securing the express written permission of the Husband or an order of a court of competent jurisdiction of the State of New York, County of New York.”
Where there is a specific agreement limiting the geographical location of the custodial residence and the custodial parent applies for judicial relief from such agreed upon terms, the applicant must not only show exceptional circumstances warranting the change in the best interests of the children (see, Coniglio v Coniglio, 170 AD2d 477), but the law also "requires that the interests which might justify such a relocation by the custodial parent be balanced against the noncustodial parent’s fundamental human right to frequent visitation” (Rybicki v Rybicki, 176 AD2d 867, 870).
In Rybicki, the parties entered a stipulation that the custodial residence would be maintained by the mother in the Town of Huntington or Smithtown until the youngest of the three children attained eighteen years of age. When the mother remarried and sought to move the custodial residence to Fairfield County, Connecticut to accommodate her new husband’s employment, the Court denied permission to relocate the custodial residence in large part on the basis of the degree of involvement of the non-custodial parent in the daily lives of his children which the Court described in words that equally apply to the present case: "the former husband [is] exceptionally involved in the day to day parenting of his children. In essence, he had structured his life so as to participate actively in the children’s interests and activities” (176 AD2d, supra, at 870).
Appellant works in Manhattan as the director of a medical research institute which he founded and finances. He has structured his work life so as to have the flexibility to maintain his active involvement in his children’s lives. Respondent is currently enrolled as a student in the Pace University Law School in White Plains. While the family initially lived in New Haven, it is the clear intent of the separation agreement to limit the permissible geographical location of the custodial residence to communities closer to appellant’s workplace than
[197] New Haven. There is no evidence of any substantial or unanticipated change in circumstances since the date of the separation agreement. Pursuant to the separation agreement, respondent received a substantial lump sum payment. Appellant is also financially secure. Thus, there is no issue of economic necessity that would constitute an exceptional circumstance justifying the move (see, Matter of Atkinson v Atkinson, 197 AD2d 771).
In disaffirming the Referee’s report, the motion court held that respondent did not have to prove the existence of exceptional circumstances because the move to New Haven is a “reasonable distance” that “will amount to little if any disruption in the father’s relationship with the children.” Any fair reading of the record must lead to the conclusion that the one hour and forty-five minute train ride to New Haven will disrupt the substantial involvement of appellant in the daily lives of the children during the week. Accordingly, the motion court’s holding that respondent is not required to demonstrate the existence of exceptional circumstances is erroneous as a matter of law (see, Matter of Radford v Propper, 190 AD2d 93).
Turning to the facts of this case, we find that on this record there is no showing of exceptional circumstances that would warrant abrogation of the geographical limitation in the best interests of the children. The record clearly establishes that appellant is an active parent whose involvement in his children’s lives is extensively detailed in the motion court’s decision. He takes the children to school two mornings a week. He meets them after school on Wednesday evenings. He accompanies them to their friends’ birthday parties and gives them birthday parties every other year. He arranges play dates and takes them to parks and museums. He attends parent-teacher conferences and special school functions during school hours. It is this extensive involvement by appellant during the week that would be lost if respondent is permitted to alter the terms of the agreement and move to New Haven. Weighed against this significant and beneficial involvement by appellant in the lives of his children is nothing more than respondent’s desire to reside in a more suburban setting, albeit one where the family does have substantial connection, and to renew and continue social contacts in that community. The reasons for the proposed move set forth by respondent, to live in a more suburban environment where the children can enjoy trees and grass and live less structured lives can be accomplished by living in communities within the radius area, that would be more accessible to appellant on a daily basis. In
[198] any event, these lifestyle considerations do not amount to "exceptional circumstances” (see, Strahl v Strahl, 66 AD2d 571, affd 49 NY2d 1036).
The evidence with respect to the interests of the children in moving to New Haven as opposed to remaining in New York is at best equivocal. There is nothing in the record that would constitute an exceptional circumstance with respect to the interests of the children that would be advanced by a move to New Haven. The issue of special education needs is of no significance inasmuch as there was no evidence that the education opportunities in New Haven were more appropriate. Indeed, on balance, the interests of the children appear to be better served by the continuity of the Day School with frequent contact with their father during the week. We agree with the Special Referee that the children’s best interests would not be served by moving to New Haven.
In disaffirming the Special Referee’s report, the motion court held that it was not supported by the record because there was no record evidence of "special educational needs” on the part of Hannah, which the report referred to, and because the report overlooked essential facts in the record. The only facts the motion court then refers to are the extent of the family’s historic contacts with New Haven, and the claims of respondent’s alleged interference with appellant’s visitation. Neither of these factual recitations are relevant to the threshold issue of relieving respondent from her agreement to maintain the custodial residence within the radius area, in the absence of exceptional circumstances.
With respect to the issues regarding mid-week visitation by appellant, we agree with the Referee that the schedule should not be altered and that the best interests of the children would be served by having their father take them to school two mornings a week. To the extent that there are issues as to the lateness of the children and their father’s angry reaction to this recurrent problem, the conclusion of the Special Referee that the children’s best interests are served by continuing this schedule should have been accorded greater deference by the motion court. The Special Referee heard the testimony of the witnesses, and was in a position to assess their demeanor and credibility (see, Eschbach v Eschbach, 56 NY2d 167, 173; Matter of Fringo v Riccio, 171 AD2d 963, 964).
The motion court improvidently exercised its discretion by granting permission to move the custodial residence to New Haven on the basis of an insupportable construction of the
[199] record evidence that the move would "amount to little if any disruption in the father’s relationship with the children.” By not applying the exceptional circumstances test, the motion court improperly avoided the requirement of balancing the rights and interests of both parents in determining what would serve the best interests of the children. Applying the correct standard of law, it is clear that the report of the Special Referee should be confirmed in its entirety. Concur— Murphy, P. J., Wallach and Williams, JJ.
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