Bracken, J. P. (dissenting). The Supreme Court’s resolution of the present child custody dispute constitutes an improvident exercise of discretion, if not an error as a matter of law. The practical effect of the order under review would be to remove two children from their father, as well as from their extended family here in the United States, and to send them to London, England, where they would reside permanently in the household of their mother’s second husband. Since there are no "exceptional circumstances” which warrant this radical disruption in the children’s lives, I conclude that the order under review must be reversed.
David Hemphill, the defendant-appellant, and Lauren Hemphill, the plaintiff-respondent, were married in 1977, and became the parents of a daughter, Meredith, who was born in 1982, and a son, also named David, who was born in 1983. The parties were divorced pursuant to a judgment dated July 30, 1988, in which a separation agreement dated April 7, 1988, is incorporated but not merged.
Prior to their divorce, the parties had resided together with their children in Mount Kisco, New York. David Hemphill, Sr., was employed by the management of the "Progressive Farmer” magazine; Lauren Hemphill was a singer and performer, but was not employed.
Neither parent can be faulted in any way with respect to the care and concern which they have demonstrated for their two children. Before the separation and subsequent divorce, Mr. Hemphill participated in the upbringing of his children as actively as the circumstances of his employment permitted. He was often required to supervise the children by himself for the periods of time during which his former wife traveled to and vacationed in London.
*39After the parties separated, Mr. Hemphill continued to foster his close relationship with his children. He never missed weekend visitation scheduled under the parties’ agreement. In each of the two years which followed the separation, Mr. Hemphill spent all or part of approximately 100 days with his children, although the children resided with their mother at a considerable distance, in Lawrenceville, New Jersey.
In April 1989 the plaintiff made known her intention to marry John Goldsmith, a British national who resides in London. The instant motion was brought shortly thereafter. In July 1989, during the pendency of the motion, the plaintiff married Mr. Goldsmith.
After a hearing, the Supreme Court denied the defendant’s motion to enjoin his former wife from relocating the children to London, and to transfer legal custody of them to him. The court also provided for a visitation schedule which would allow the children to travel from England to visit Mr. Hemp-hill once a year during the summer (for six weeks) and four times a year during other school holidays. This appeal followed.
The applicable rule of law is that one parent may not frustrate the other parent’s exercise of the natural human right to frequent visitation with the children, and that the custodial parent may not, therefore, remove the children to a geographical location so distant as to render the exercise of that basic human right by the noncustodial parent impracticable. While the vicissitudes of modern life often prompt a custodial parent to relocate for economic or personal reasons, the law requires that the interests which might justify such a relocation be balanced against the fundamental human right to frequent visitation possessed by the noncustodial parent. The latter right is considered so weighty that only in "exceptional” or "compelling” circumstances will a parent who insists on relocating be permitted to retain custody (see, e.g., Daghir v Daghir, 82 AD2d 191, affd 56 NY2d 938; Coniglio v Coniglio, 170 AD2d 477; Reyes v Ball, 162 AD2d 770; Meier v Meier, 156 AD2d 348; Matter of Aadahl v Aadahl, 148 AD2d 531; Matter of Bonfiglio v Bonfiglio, 134 AD2d 426; Lo Bianco v Lo Bianco, 131 AD2d 642; Morgaño v Morgaño, 119 AD2d 734; Kozak v Kozak, 111 AD2d 842; Matter of Savino v Savino, 110 AD2d 642).
In accordance with this rule, custody should generally be *40awarded to the parent who is capable of remaining in proximity to the marital home, that is, the place where the children are more likely to have established contacts with extended family members, friends and acquaintances. This is a concern which is highlighted in the present case in that the children know no one in England (apart from their mother), whereas they have several relatives in the United States. Furthermore, the record does not contain evidence sufficient to guarantee that the children would make a smooth transition from American public schools to the English "public” (i.e., private) school to which they would be sent by their mother and stepfather, a school which would include religious instruction under the auspices of the Church of England.
I acknowledge that, in some cases, the best interests of the children may warrant recognition of an exception to this general rule. These cases are, however, the "exception” rather than the "rule”, precisely because it is extremely rare that a child’s best interests will be served by depriving him or her of contact with the "mature guiding hand and love of a second parent” (Weiss v Weiss, 52 NY2d 170, 175). The "exceptional circumstances” standard was devised by the courts in cases such as Daghir v Daghir (supra) in order to deter one parent from frustrating the children’s right to frequent visitation with their other parent. The exceptional circumstances standard is thus primarily designed to protect the rights of the children by taking into account the benefits they derive from frequent contact with both their natural mother and their natural father, and by deterring any conduct on the part of either parent which would tend to deprive the children of this right.
The exceptional circumstances rule is, in other words, designed to encourage the children’s regular access to both parents by discouraging either parent from moving away from the situs of the former marital home. In my view, this rule would lose a substantial amount of its deterrent effect if it were given less force in those cases in which the custodial parent has moved (or, as here, has made absolutely clear the intent to move) even before knowing the effect that such a move would have in the custody issue, than in those cases in which the custodial parent more prudently awaits a judicial determination on the custody issue before moving. Accordingly, in the present case, no weight should be given to the fact that because of her marriage to a British subject, the plaintiff has already rendered her translocation to England a *41virtual inevitability. The court should not, in other words, accept the plaintiffs relocation to England and the disruption of the preexisting custody agreement which it necessarily entails, as a fait accompli, and should instead judge the merits of the custody issue as though the plaintiffs relocation were not a foregone conclusion. To approach the issue otherwise would be to encourage child custody litigants to change, rather than to preserve, the status quo ante during the pendency of a custody dispute, in the hope of influencing the court’s decision.
Even if I were to consider the plaintiffs transatlantic relocation as an accomplished fact, that is, a circumstance which cannot now be changed and upon which the deterrent force represented by application of the "exceptional circumstances” standard can have no effect, I would nevertheless conclude, as a matter of fact, that the best interests of the children require that they remain in the United States with their father. As noted above, both parties to this proceeding are good parents and neither can be said to be inherently superior to the other.
Both parties are fully capable of providing for the children’s physical well-being. If it can be said that the plaintiff-respondent, due to her second husband’s wealth, will not be required to work, and will thus be able to spend more time with the children, then it can just as well be said that it is the plaintiff-respondent who will be more able to set aside the time (and the resources) needed to engage in the frequent transatlantic travel which will be necessary if regular visitation is to occur.
In sum, there is no basis in the present record upon which to conclude that one of the parties—either the mother or the father—is intrinsically more "fit” as a parent. There is similarly no basis upon which to conclude that the children would be better off residing with one of the parties, rather than with the other. Given the equivalence which results when the "best interest of the children” test is applied, I conclude that the case must be decided with reference to the rule which disfavors the relocating parent, since it is that parent who, even if for the best of reasons, must ultimately be considered responsible for the breakdown of what had been a fair and equitable custody arrangement.
The order under review should, therefore, be reversed, on the law and as a matter of discretion, the defendant’s motion should be granted to the extent that the plaintiff should be enjoined from removing the children to England, and to the *42further extent that legal custody of the children should be transferred to him, and the matter should be remitted to the Supreme Court, Westchester County, for further proceedings to determine the time and manner of the plaintiffs visitation with the children.
Hooper and Ritter, JJ., concur with Kunzeman, J.; Bracken, J. P., and Balletta, J., dissent in an opinion by Bracken, J. P.
Ordered that the order is affirmed insofar as appealed from, with costs.