Opinion
02-06-2015
Ryan M. FORRESTEL, Plaintiff–Respondent, v. Marguerita M. FORRESTEL, Defendant–Appellant.
Leonard G. Tilney, Jr., Lockport, for Defendant–Appellant. John P. Pieri, Buffalo, for Plaintiff–Respondent. Kristin L. Arcuri, Attorney for the Children, Buffalo.
Leonard G. Tilney, Jr., Lockport, for Defendant–Appellant.
John P. Pieri, Buffalo, for Plaintiff–Respondent.
Kristin L. Arcuri, Attorney for the Children, Buffalo.
PRESENT: SMITH, J.P., FAHEY, CARNI, VALENTINO, and WHALEN, JJ.
Opinion
MEMORANDUM:Defendant mother appeals from an order that, inter alia, awarded the parties joint custody of their children and denied her request to relocate with the children to the Netherlands.
Contrary to the mother's contention, Supreme Court's explanation of its reasons for rejecting her expert's opinion “is supported by the record, and thus it cannot be said that the court arbitrarily rejected [that] opinion” (Matter of Alexandra H. v. Raymond B.H., 37 A.D.3d 1125, 1126, 829 N.Y.S.2d 778 ; see Matter of Hopkins v. Wilkerson, 255 A.D.2d 319, 319–320, 679 N.Y.S.2d 412 ). Contrary to the mother's further contention, the court's determination that joint custody with plaintiff father is in the children's best interests “is supported by a sound and substantial basis in the record and thus [should] not be disturbed” (Wideman v. Wideman, 38 A.D.3d 1318, 1319, 834 N.Y.S.2d 405 [internal quotation marks omitted] ). Although the custody trial included evidence of acrimony between the parties, the record supports the court's determination that “the parties are not so embattled and embittered as to effectively preclude joint decision making” (Capodiferro v. Capodiferro, 77 A.D.3d 1449, 1450, 908 N.Y.S.2d 492 [internal quotation marks omitted] ). The mother contends that the court erred in denying her request to relocate with the children to the Netherlands. We reject that contention. Inasmuch as this case involves an initial custody determination, “it cannot properly be characterized as a relocation case to which the application of the factors set forth in Matter of Tropea v. Tropea (87 N.Y.2d 727, 740–741, 642 N.Y.S.2d 575, 665 N.E.2d 145 [1996] ) need be strictly applied” (Matter of Saperston v. Holdaway, 93 A.D.3d 1271, 1272, 940 N.Y.S.2d 728, appeal dismissed 19 N.Y.3d 887, 948 N.Y.S.2d 577, 971 N.E.2d 858, 20 N.Y.3d 1052, 961 N.Y.S.2d 828, 985 N.E.2d 423; see Matter of Moore v. Kazacos, 89 A.D.3d 1546, 1546, 932 N.Y.S.2d 788, lv. denied 18 N.Y.3d 806, 2012 WL 446225 ). “Although a court may consider the effect of a parent's relocation as part of a best interests analysis, relocation is but one factor among many in its custody determination” (Saperston, 93 A.D.3d at 1272, 940 N.Y.S.2d 728 ; see Matter of Quistorf v. Levesque, 117 A.D.3d 1456, 1457, 984 N.Y.S.2d 773 ). Here, the court “properly determined that the children's relationship with [the father] would be adversely affected by the proposed relocation because of the distance between [Erie] County and [the Netherlands]” (Matter of Jones v. Tarnawa, 26 A.D.3d 870, 871, 809 N.Y.S.2d 742, lv. denied 6 N.Y.3d 714, 816 N.Y.S.2d 749, 849 N.E.2d 972 ; see Matter of Ramirez v. Velazquez, 91 A.D.3d 1346, 1347, 937 N.Y.S.2d 504 ).
Finally, we reject the mother's contention that the court erred in refusing to allow the testimony of a therapist who provided treatment to one of the children. The Attorney for the Child “did not consent to the disclosure of confidential communications between the child and [her] therapist” (Matter of Ascolillo v. Ascolillo, 43 A.D.3d 1160, 1161, 844 N.Y.S.2d 339 ; cf. Matter of Billings v. Billings, 309 A.D.2d 1194, 1194, 765 N.Y.S.2d 297 ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.