Opinion
7139
09-25-2018
In re IVAN J., Petitioner–Appellant, v. KATHRYN G., Respondent–Respondent.
Law Office of Elisa Barnes, New York (Elisa Barnes of counsel), for appellant. Law Offices of Randall S. Carmel, Jericho (Randall S. Carmel of counsel), for respondent. Carol L. Kahn, New York, attorney for the child.
Law Office of Elisa Barnes, New York (Elisa Barnes of counsel), for appellant.
Law Offices of Randall S. Carmel, Jericho (Randall S. Carmel of counsel), for respondent.
Carol L. Kahn, New York, attorney for the child.
Acosta, P.J., Sweeny, Manzanet–Daniels, Gesmer, Singh, JJ.
Order, Family Court, Bronx County (Brenda Rivera, J.), entered on or about November 8, 2017, which, insofar as appealed from as limited by the briefs, after a trial, denied the father's petition for custody of the subject child and granted the mother's petition for custody and relocation to Florida, unanimously affirmed, without costs. In reviewing relocation and other custody issues, we defer to the determination rendered by the factfinder, "unless it lacks a sound and substantial basis in the record" ( Matter of Salena S. v. Ahmad G. , 152 A.D.3d 162, 58 N.Y.S.3d 35 [1st Dept. 2017], quoting Matter of David J.B. v. Monique H. , 52 A.D.3d 414, 415, 861 N.Y.S.2d 330 [1st Dept. 2008] [internal quotation marks omitted] ). Where, as here, there has been no prior custody order at the time of the parent's relocation, the factors set forth in Matter of Tropea v. Tropea , 87 N.Y.2d 727, 739, 642 N.Y.S.2d 575, 665 N.E.2d 145 [1996] do not govern, and relocation should be considered as one factor in determining the child's best interests (see Matter of Michael B. [Lillian B.] , 145 A.D.3d 425, 430, 42 N.Y.S.3d 141 (1st Dept. 2016).
We decline to disturb Family Court's award of custody to the mother, as it has a sound and substantial basis in the record and was issued on the basis of first-hand observations of the parties and their credibility over nine days of testimony.
In assessing the relative stability of the parties' homes, the court acknowledged that the mother, after repeated relocations with the subject child and her other children, was living with her mother in an admittedly temporary situation. However, her plan for caring for the child reflected an ability and willingness to be regularly and fully available for the child in ways that the father cannot or does not (see Andrews v. Andrews , 74 A.D.2d 546, 425 N.Y.S.2d 120 [1st Dept. 1980], affd 53 N.Y.2d 787, 439 N.Y.S.2d 918, 422 N.E.2d 578 [1981] ).
Family Court correctly determined that the mother's testimony as to her gross salary and overall employment situation at the time of trial was credible. She testified to having obtained employment with the prospect of increasing salary and responsibility, and the father presented no evidence to the contrary.
The court also appropriately deemed the child's close relationship with her sister, supported by the record, as a factor in favor of the mother's petition (see Eschbach v. Eschbach , 56 N.Y.2d 167, 173, 451 N.Y.S.2d 658, 436 N.E.2d 1260 [1982] ), and we disagree that the testimony suggests that the sister no longer lives in Florida. The child has siblings in New York as well, but the father and his witnesses presented minimal testimony about her relationship with them, in contrast to the mother's testimony about the close bond between the child and her sister.
The absence of a probation report concerning an alleged domestic violence incident in Florida in the child's presence involving the mother and a former fiance´ was not preserved on appeal. Even if the issue were before us, this would not change our decision, since the evidence at trial showed that the mother and her children no longer have any contact with the former fiance´.
We have considered the father's remaining arguments and find them unavailing.