Opinion
September 30, 1994
Appeal from the Oneida County Family Court, Flemma, J.
Present — Balio, J.P., Lawton, Wesley, Doerr and Boehm, JJ.
Order unanimously modified on the law and as modified affirmed without costs and matter remitted to Oneida County Family Court for further proceedings in accordance with the following Memorandum: Family Court did not abuse its discretion in denying respondents' cross petition to permit Marc Aylesworth (respondent) to relocate to Kentucky with the parties' child. Respondents failed to demonstrate that exceptional circumstances warranted a relocation (see, Stec v. Levindofske, 153 A.D.2d 310, 312, lv denied 75 N.Y.2d 711; Richardson v. Howard, 135 A.D.2d 1140; Matter of Kelly v. Kelly, 132 A.D.2d 977, 977-978; Barie v Faulkner, 115 A.D.2d 1003, 1004).
The court abused its discretion, however, in granting the petition of petitioner for custody. The primary focus in any custody case is the best interests of the child (see, Wodka v Wodka, 168 A.D.2d 1000, 1001; see also, Wiles v. Wiles, 171 A.D.2d 398, 399; Ideman v. Ideman, 168 A.D.2d 1001, 1002). "The preexisting custodial arrangement, whether established by agreement or order, is a weighty factor, and the existing arrangement should be changed based only upon `"countervailing circumstances or consideration of the totality of circumstances"'" (Fox v. Fox, 177 A.D.2d 209, 210-211, quoting Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 95). Here, when the parties separated, petitioner relinquished custody of the child to respondent, and agreed that the child would live with respondent's parents while respondent, who was in the Navy, was stationed in Japan. That agreement was incorporated into the parties' divorce decree. The uncontroverted evidence demonstrated that, although respondent was overseas for several years, he maintained a good relationship with his daughter through telephone calls and letters and spent every home leave with her. When he returned to the United States, respondent obtained petitioner's permission for the child to stay with him for an extended time in California. He has remarried and his wife shares his desire for custody.
The record does not demonstrate "countervailing circumstances" sufficient to justify disturbing the established custody arrangement. At the time of the hearing, petitioner was living in a two-bedroom apartment with a married man with five children of his own. She had an out-of-wedlock son by that man. She had exercised sporadic visitation with her daughter over the years. She acknowledged that, when her daughter was in California with respondent for over six months, she never telephoned her daughter and wrote her only one letter.
In awarding custody to petitioner, the court disregarded the opinion of the child's counselor, as well as the opinions of the probation department and the Law Guardian, that custody should not be changed. We conclude that the court's change of custody lacks a sound and substantial basis in the record (see, Matter of Radford v. Propper, 190 A.D.2d 93, 97). We modify Family Court's order, therefore, by denying the petition for custody without prejudice to renew should respondent decline to remain in New York, and we remit the matter to Family Court to set a visitation schedule for petitioner.