Opinion
236 CAF 17–01879
08-22-2019
In the Matter of Lindsay R. BETTS, Petitioner–Appellant, v. Wayne E. MOORE, Respondent–Respondent.
CARA A. WALDMAN, FAIRPORT, FOR PETITIONER–APPELLANT. CHRISTINE F. REDFIELD, ROCHESTER, ATTORNEY FOR THE CHILD.
CARA A. WALDMAN, FAIRPORT, FOR PETITIONER–APPELLANT.
CHRISTINE F. REDFIELD, ROCHESTER, ATTORNEY FOR THE CHILD.
PRESENT: WHALEN, P.J., SMITH, CARNI, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this proceeding pursuant to Family Court Act article 6, petitioner mother appeals from an order that, inter alia, dismissed her "[p]etition and [a]mended [p]etition" seeking, among other things, to modify a prior order of custody and visitation by permitting her to relocate with the subject child from Ontario County to Monroe County and by granting her sole custody of the child. We affirm.
Initially, we agree with the mother that Family Court erred in denying her request for permission to relocate on the ground that she failed to establish a change in circumstances sufficient to warrant such a modification of the existing order of custody and visitation (see Lauzonis v. Lauzonis , 120 A.D.3d 922, 923, 992 N.Y.S.2d 586 [4th Dept. 2014] ). The mother was not required to demonstrate a change of circumstances (see Lauzonis , 120 A.D.3d at 923, 992 N.Y.S.2d 586 ; Matter of Chancer v. Stowell , 5 A.D.3d 1082, 1083, 773 N.Y.S.2d 702 [4th Dept. 2004] ); rather, because she sought permission to relocate with the subject child, the court was required to determine whether the proposed relocation was in the child's best interests by analyzing the factors set forth in Matter of Tropea v. Tropea , 87 N.Y.2d 727, 739–741, 642 N.Y.S.2d 575, 665 N.E.2d 145 (1996) ; see generally Matter of Adams v. Bracci , 91 A.D.3d 1046, 1046–1047, 936 N.Y.S.2d 738 (3d Dept. 2012), lv denied 18 N.Y.3d 809, 2012 WL 1033620 (2012).
Although the court did not engage in the Tropea analysis, the record is sufficient to permit this Court to do so (see Matter of Mineo v. Mineo , 96 A.D.3d 1617, 1618, 946 N.Y.S.2d 391 [4th Dept. 2012] ). It is well settled that, when confronted with a custodial parent's request to relocate with his or her child, the court is required to consider all relevant circumstances, "with predominant emphasis being placed on what outcome is most likely to serve the best interests of the child" ( Tropea , 87 N.Y.2d at 739, 642 N.Y.S.2d 575, 665 N.E.2d 145 ; see Matter of Boyer v. Boyer , 281 A.D.2d 953, 953, 722 N.Y.S.2d 322 [4th Dept. 2001] ). After considering all of the relevant factors (see Tropea , 87 N.Y.2d at 740–741, 642 N.Y.S.2d 575, 665 N.E.2d 145 ), we conclude that the mother failed to meet her burden of establishing by a preponderance of the evidence that the proposed relocation from Ontario County to an unspecified place in Monroe County is in the child's best interests (see Matter of Shepherd v. Stocker , 159 A.D.3d 1441, 1441–1442, 73 N.Y.S.3d 693 [4th Dept. 2018] ). Although the mother cited improved job prospects and a better school district among her primary reasons for relocating, the mother did not indicate the particular school district into which she planned to move, and thus she "failed to establish that the child would receive a better education in" Monroe County than in her current school district ( id. at 1442, 73 N.Y.S.3d 693 ). Further, the evidence submitted by the mother indicated that she had merely a possibility of finding a better job in Monroe County. Consequently, she failed to establish that her life and that of the child "would be ‘enhanced economically ... by the move’ " ( Matter of Holtz v. Weaver , 94 A.D.3d 1557, 1558, 943 N.Y.S.2d 363 [4th Dept. 2012], quoting Tropea , 87 N.Y.2d at 741, 642 N.Y.S.2d 575, 665 N.E.2d 145 ; see Matter of Williams v. Epps [Appeal No. 1], 101 A.D.3d 1695, 1695, 956 N.Y.S.2d 773 [4th Dept. 2012] ). Additionally, the parties stipulated to the condition in the prior order of custody and visitation that precluded either parent from "permanently remov[ing] the [subject c]hild from the Canandaigua School District" without the agreement of the other or a court order, which, although not dispositive, is a factor that militates against granting the mother's request to relocate (see Tropea , 87 N.Y.2d at 741 n. 2, 642 N.Y.S.2d 575, 665 N.E.2d 145 ; Lauzonis , 120 A.D.3d at 923, 992 N.Y.S.2d 586 ).
Finally, we reject the mother's contention that the court erred in denying her request for sole custody of the subject child. We conclude that the court properly denied that part of the amended petition because "there is a sound and substantial basis in the record for [the c]ourt's determination that the mother failed to make the requisite evidentiary showing of a change in circumstances to warrant an inquiry into whether the best interests of the subject child would be served by modifying the existing custody arrangement" ( Matter of Wawrzynski v. Goodman , 100 A.D.3d 1559, 1559, 953 N.Y.S.2d 921 [4th Dept. 2012] ; see Laveck v. Laveck , 160 A.D.3d 1397, 1398, 76 N.Y.S.3d 320 [4th Dept. 2018] ; Matter of Avola v. Horning , 101 A.D.3d 1740, 1740–1741, 957 N.Y.S.2d 787 [4th Dept. 2012] ).
We have considered the mother's remaining contentions and conclude that none warrants modification or reversal of the order.