Opinion
35 CAF 21-01190
01-28-2022
In the Matter of Dylan P. HOCHREITER, Petitioner-Respondent-Appellant, v. Kaitlynn A. WILLIAMS, Respondent-Petitioner-Respondent.
MICHAEL STEINBERG, ROCHESTER, FOR PETITIONER-RESPONDENT-APPELLANT. JAMES P. VACCA, ROCHESTER, FOR RESPONDENT-PETITIONER-RESPONDENT. ELIZABETH deV. MOELLER, ROCHESTER, ATTORNEY FOR THE CHILD.
MICHAEL STEINBERG, ROCHESTER, FOR PETITIONER-RESPONDENT-APPELLANT.
JAMES P. VACCA, ROCHESTER, FOR RESPONDENT-PETITIONER-RESPONDENT.
ELIZABETH deV. MOELLER, ROCHESTER, ATTORNEY FOR THE CHILD.
PRESENT: CENTRA, J.P., NEMOYER, CURRAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the amended order so appealed from is unanimously affirmed without costs.
Memorandum: Petitioner-respondent father appeals from an amended order that, inter alia, awarded the parties joint legal custody of their child and granted respondent-petitioner mother primary physical residence with permission to relocate with the child to North Carolina. We affirm.
We reject the father's contention that Family Court failed to consider all relevant factors in making its best interests determination. We note at the outset that, "[i]nasmuch 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’ " ( Forrestel v. Forrestel , 125 A.D.3d 1299, 1299, 3 N.Y.S.3d 483 [4th Dept. 2015], lv denied 25 N.Y.3d 904, 2015 WL 2026161 [2015] ). " ‘Although a court may consider the effect of a parent's [proposed] relocation as part of a best interests analysis, relocation is but one factor among many in its custody determination’ " ( id. at 1299-1300, 3 N.Y.S.3d 483 ). "[T]he relevant issue is whether it is in the best interests of the child to reside primarily with the mother or the father" ( Matter of Saperston v. Holdaway , 93 A.D.3d 1271, 1272, 940 N.Y.S.2d 728 [4th Dept. 2012], appeal dismissed 19 N.Y.3d 887, 948 N.Y.S.2d 577, 971 N.E.2d 858 [2012], 20 N.Y.3d 1052, 961 N.Y.S.2d 828, 985 N.E.2d 423 [2013] ; see generally Eschbach v. Eschbach , 56 N.Y.2d 167, 172-174, 451 N.Y.S.2d 658, 436 N.E.2d 1260 [1989] ). Here, we conclude that the record demonstrates that the court weighed the appropriate factors in making its custody determination, including the mother's proposed relocation, as well as the continuity and stability of the existing custodial arrangement, the relative fitness of the parents and the length of time the custodial arrangement has continued, the quality of each parent's home environment, the ability of each parent to provide for the child's emotional and intellectual development, and the financial status and ability of each parent to provide for the child (see generally Fisher v. Fisher , 148 A.D.3d 1783, 1784, 50 N.Y.S.3d 773 [4th Dept. 2017] ; Fox v. Fox , 177 A.D.2d 209, 210, 582 N.Y.S.2d 863 [4th Dept. 1992] ). We further conclude that the court's determination that the child's best interests would be served by awarding the parties joint legal custody with primary physical residence with the mother in North Carolina is supported by a sound and substantial basis in the record and should not be disturbed (see generally Fisher , 148 A.D.3d at 1784, 50 N.Y.S.3d 773 ).
The father's further contention that the court improperly interjected itself into the fact-finding hearing is unpreserved for our review (see Matter of Denise L. v. Michael L. , 138 A.D.3d 1172, 1173, 30 N.Y.S.3d 353 [3d Dept. 2016] ).
The father's remaining contention is academic in light of our determination.