Opinion
2017–08975 Docket Nos. V–3796–10/17C, V–3796–10/17D
07-05-2018
In the Matter of Jessica LYONS, appellant, v. Nicholas SEPE, respondent.
Francesco P. Tini, Copiague, NY, for appellant. Phillips, Artura & Cox, Lindenhurst, N.Y. (Michael S. Cox of counsel), for respondent. Rachel A. Camillery, West Islip, NY, attorney for the child.
Francesco P. Tini, Copiague, NY, for appellant.
Phillips, Artura & Cox, Lindenhurst, N.Y. (Michael S. Cox of counsel), for respondent.
Rachel A. Camillery, West Islip, NY, attorney for the child.
WILLIAM F. MASTRO, J.P., MARK C. DILLON, HECTOR D. LASALLE, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
In a proceeding pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Suffolk County (Theresa Whelan, J.), dated August 30, 2017. The order, after a hearing, denied the mother's petition to modify an order of the same court dated January 16, 2014, so as to permit her to relocate with the parties' child to Rochester, and granted the father's petition to modify the same order so as to award him residential custody of the child, and set forth a parental access schedule.
ORDERED that the order is affirmed, with costs.
Jessica Lyons (hereinafter the mother) and Nicholas Sepe (hereinafter the father), who never married each other, have one child together, born in 2007. In an order dated January 16, 2014, the Family Court, Suffolk County, awarded the parties joint legal custody of the child and the mother was awarded residential custody, while the father was awarded parental access with the child. In addition, the order prohibited the mother from relocating beyond a 20–mile radius from her Kings Park residence without the written consent of the father or a court order.
In or about March 2017, the father refused to consent to the mother relocating with the child to the Rochester area. In April 2017, the mother filed a petition to modify the January 16, 2014, order so as to permit her to relocate with the child to the Rochester area. The mother alleged, inter alia, that relocation would be in the child's best interests given an increase in the mother's household income and reduced costs of living, and the child's bond with his half-siblings. In May 2017, the father filed his own petition to modify the January 16, 2014, order so as to award him residential custody of the child, alleging, inter alia, that the proposed relocation of the child would have a detrimental impact on his parental access with the child.
The mother relocated to Pittsford on July 1, 2017. After a hearing held in August 2017, the Family Court denied the mother's petition, granted the father's petition, and set forth a parental access schedule. The mother appeals.
" ‘A parent seeking leave to relocate with a child bears the burden of establishing by a preponderance of the evidence that the proposed move would be in the child's best interests’ " ( Matter of Teel v. Minus, 152 A.D.3d 705, 705, 59 N.Y.S.3d 99, quoting Matter of Caruso v. Cruz, 114 A.D.3d 769, 771, 980 N.Y.S.2d 137 ; see Matter of Detwiler v. Detwiler, 145 A.D.3d 778, 779, 42 N.Y.S.3d 354 ). In determining whether relocation is in the best interests of the child, courts are "free to consider and give appropriate weight to all of the factors that may be relevant to the determination" ( Matter of Tropea v. Tropea, 87 N.Y.2d 727, 740, 642 N.Y.S.2d 575, 665 N.E.2d 145 ; see Matter of Teel v. Minus, 152 A.D.3d at 705, 59 N.Y.S.3d 99 ). These factors include, but are not limited to, "each parent's reasons for seeking or opposing the move, the quality of the relationships between the child and the custodial and noncustodial parents, the impact of the move on the quantity and quality of the child's future contact with the noncustodial parent, the degree to which the custodial parent's and child's life may be enhanced economically, emotionally and educationally by the move, and the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements" ( Matter of Tropea v. Tropea, 87 N.Y.2d at 740–741, 642 N.Y.S.2d 575, 665 N.E.2d 145 ). "[N]o single factor should be treated as dispositive or given such disproportionate weight as to predetermine the outcome" ( id. at 738, 642 N.Y.S.2d 575, 665 N.E.2d 145 ). However, the impact of the move on the relationship between the child and the noncustodial parent remains a central concern (see id. at 741, 642 N.Y.S.2d 575, 665 N.E.2d 145 ; Matter of Francis–Miller v. Miller, 111 A.D.3d 632, 635, 975 N.Y.S.2d 74 ).
"In relocation proceedings, this Court's authority is as broad as that of the hearing court" ( Matter of Caruso v. Cruz, 114 A.D.3d at 771, 980 N.Y.S.2d 137 ). However, the Family Court's assessment of the witnesses' demeanor and credibility is accorded considerable deference and a relocation determination will be upheld if supported by a sound and substantial basis in the record (see Matter of Detwiler v. Detwiler, 145 A.D.3d at 780, 42 N.Y.S.3d 354; Matter of Ventura v. Huggins, 141 A.D.3d 600, 601, 34 N.Y.S.3d 599 ).
Here, contrary to the mother's contentions, the record demonstrates that the Family Court, which was familiar with the parties from prior proceedings, appropriately considered and gave suitable weight to all of the relevant factors (see Matter of Tropea v. Tropea, 87 N.Y.2d at 740, 642 N.Y.S.2d 575, 665 N.E.2d 145 ; Matter of Lopez v. Chasquetti, 148 A.D.3d 1151, 1152, 50 N.Y.S.3d 485 ; Matter of Detwiler v. Detwiler, 145 A.D.3d at 780, 42 N.Y.S.3d 354; Matter of Gravel v. Makrianes, 120 A.D.3d 815, 816, 991 N.Y.S.2d 452 ). Although the mother proved that the child's life would be enhanced economically, the mother failed to prove by a preponderance of the evidence that the child's life would also be enhanced emotionally and educationally by the move (see Matter of Teel v. Minus, 152 A.D.3d at 706, 59 N.Y.S.3d 99 ; Matter of Gravel v. Makrianes, 120 A.D3d at 817, 991 N.Y.S.2d 452 ). The mother also failed to show that relocation "would not have a negative impact on the quantity and quality of the child's future contact with the father," who had exercised most of his parental access rights and indicated that he desired to continue participating in the child's life ( Matter of Lopez v. Chasquetti, 148 A.D.3d at 1153, 50 N.Y.S.3d 485 ; see Matter of Teel v. Minus, 152 A.D.3d at 706, 59 N.Y.S.3d 99 ; Matter of Gravel v. Makrianes, 120 A.D.3d at 817, 991 N.Y.S.2d 452 ; Matter of Karen H. v. Maurice G., 101 A.D.3d 1005, 1007, 956 N.Y.S.2d 154 ; Matter of McBryde v. Bodden, 91 A.D.3d 781, 782, 936 N.Y.S.2d 292 ).
In light of the mother's acceptance of a job promotion and relocation to Pittsford, and the adverse impact of the move with respect to the father's parental access with the child, the father demonstrated that there was a sufficient change in circumstances since the initial custody determination such that modification so as to award him residential custody was in the best interests of the child (see Eschbach v. Eschbach, 56 N.Y.2d 167, 173–173, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ; Matter of Coon v. Sanabria, 158 A.D.3d 756, 757, 71 N.Y.S.3d 153 ; Matter of Lopez v. Chasquetti, 148 A.D.3d at 1153, 50 N.Y.S.3d 485 ; Matter of Detwiler v. Detwiler, 145 A.D.3d at 781, 42 N.Y.S.3d 354; Matter of Cornejo v. Salas, 110 A.D.3d 1068, 1070, 973 N.Y.S.2d 778 ). While not determinative, this conclusion is consistent also with the position advanced by the attorney for the child both at the hearing and on appeal (see Matter of Cisse v. Graham, 120 A.D.3d 801, 806, 991 N.Y.S.2d 465, affd 26 N.Y.3d 1103, 24 N.Y.S.3d 583, 45 N.E.3d 623 ; Matter of Kozlowski v. Mangialino, 36 A.D.3d 916, 917, 830 N.Y.S.2d 557 ).
Moreover, contrary to the mother's contention, the Family Court providently exercised its discretion in crafting the parental access schedule, which was in the best interests of the child and was supported by a sound and substantial basis in the record (see Matter of Morris v. Morris, 156 A.D.3d 702, 704, 66 N.Y.S.3d 532 ; Chamberlain v. Chamberlain, 24 A.D.3d 589, 592, 808 N.Y.S.2d 352 ). In addition, the record "demonstrates that the parties are not so antagonistic, embattled, and unable to set aside their differences that they cannot" agree on additional parental access time that would be in the best interests of the child ( Matter of Retamozzo v. Moyer, 91 A.D.3d 957, 959, 938 N.Y.S.2d 142 ).
MASTRO, J.P., DILLON, LASALLE and CONNOLLY, JJ., concur.