Opinion
2014-11-21
In the Matter of Corey L. BAXTER, Petitioner–Respondent, v. Leah P. BORDEN, Respondent–Appellant. (Appeal No. 1.)
Charles J. Greenberg, Amherst, for Respondent–Appellant. Paloma A. Capanna, Webster, for Petitioner–Respondent.
Charles J. Greenberg, Amherst, for Respondent–Appellant. Paloma A. Capanna, Webster, for Petitioner–Respondent.
Scott A. Otis, Attorney for the Children, Watertown.
PRESENT: SMITH, J.P., CENTRA, FAHEY, LINDLEY, and WHALEN, JJ.
MEMORANDUM:
The mother of the subject children, who is the respondent in appeal No. 1 and a petitioner in appeal No. 2 (mother), filed a petition pursuant to Family Court Act article 6, seeking to modify a prior custody order, and she later filed, inter alia, an amended petition seeking custody. The children's father, who is the petitioner in appeal No. 1 and a respondent in appeal No. 2, also filed a petition seeking to modifythe prior custody order. In appeal No. 1, the mother appeals from an order that, among other relief, awarded custody of the children to the father, granted the mother certain specified visitation with them, and ordered the father to pay 75% of the costs of transporting the children for visits. In appeal No. 2, she appeals from an order that, inter alia, dismissed her amended custody petition.
Contrary to the mother's contention in appeal No. 1, Family Court properly determined that the relocation was in the best interests of the children after considering all relevant factors ( see Matter of Tropea v. Tropea, 87 N.Y.2d 727, 740–741, 642 N.Y.S.2d 575, 665 N.E.2d 145), notwithstanding the fact that the father had already relocated with them ( see e.g. Matter of Baum v. Torello–Baum, 40 A.D.3d 750, 751, 835 N.Y.S.2d 677; Matter of Donald C.O. v. Carolyn D.V.B., 224 A.D.2d 930, 930, 637 N.Y.S.2d 907). “In cases involving the geographic relocation of the custodial parent, as in all other custody proceedings, the primary focus of the court is the best interests of the child[ren], not the mere fact of relocation” (Donald C.O., 224 A.D.2d at 930, 637 N.Y.S.2d 907). Here, we agree with the mother that “[t]he removal of [the children] without seeking permission should not be encouraged” (Schultz v. Schultz, 199 A.D.2d 1065, 1066, 606 N.Y.S.2d 480). Nevertheless, we note that, “[a]lthough the unilateral removal of the children from the jurisdiction is a factor for the court's consideration ..., ‘an award of custody must be based on the best interests of the children and not a desire to punish a recalcitrant parent’ ” (matter of tekeste b.-m. v. zeineba H., 37 a.d.3D 1152, 1153, 830 N.Y.S.2D 415). Consequently, after reviewing all relevant factors ( see generally Tropea, 87 N.Y.2d at 740–741, 642 N.Y.S.2d 575, 665 N.E.2d 145), we conclude that the father met his burden of establishing by a preponderance of the evidence that the relocation was in the best interests of the children ( see Matter of Wahlstrom v. Carlson, 55 A.D.3d 1399, 1400, 864 N.Y.S.2d 366).
Contrary to the mother's contention in appeal No. 2, the court properly dismissed her amended petition seeking custody of the children. We agree with the mother that she made a “ ‘showing of a change in circumstances which reflects a real need for change to ensure the best interest[s] of the child [ren]’ ” ( Matter of Tarrant v. Ostrowski, 96 A.D.3d 1580, 1581, 947 N.Y.S.2d 726, lv. denied20 N.Y.3d 855, 2013 WL 69170), and there are several factors that favor an award of custody to her. In reviewing an order of custody, however, we must consider all of the “factors that could impact the best interests of the child[ren], including the existing custody arrangement, the current home environment, the financial status of the parties, the ability of each parent to provide for the child[ren]'s emotional and intellectual development and the wishes of the child[ren]” ( Matter of Marino v. Marino, 90 A.D.3d 1694, 1695, 935 N.Y.S.2d 818; see Eschbach v. Eschbach, 56 N.Y.2d 167, 172–174, 451 N.Y.S.2d 658, 436 N.E.2d 1260). Upon such review, we conclude that the court's determination that it is in the best interests of the children to award primary physical custody to the father is supported by a sound and substantial basis in the record ( see Matter of Weekley v. Weekley, 109 A.D.3d 1177, 1178–1179, 972 N.Y.S.2d 376).
We have considered the mother's remaining contentions in both appeals and we conclude that they are without merit. Assuming, arguendo, that the children are aggrieved by the issue raised on appeal by the Attorney for the Children ( cf. Matter of Brittni K., 297 A.D.2d 236, 240, 746 N.Y.S.2d 290), we conclude that the issue is not before us in either appeal because the Attorney for the Children did not file a notice of appeal from either order ( see Matter of Yorimar K.-M. [Appeal No.2], 309 A.D.2d 1148, 1149, 765 N.Y.S.2d 283; Matter of Zena O., 212 A.D.2d 712, 714, 622 N.Y.S.2d 601).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.