Opinion
May 18, 1995
Appeal from the Family Court of Chemung County (Castellino, J.).
The parties were divorced in 1984. At that time, they stipulated to joint custody of their son, Andrew, then only 10 months old, with physical custody to respondent and "reasonable visitation" to petitioner. In September 1993, respondent left Andrew with petitioner's mother in order to take what respondent indicated would be an Arizona vacation. In fact, it was respondent's intention to relocate to California with her boyfriend. In mid-December 1993, respondent returned to Chemung County for Andrew, prompting petitioner to bring this application for regular visitation and respondent to cross-petition for leave to relocate with Andrew to California.
On the proceeding in Family Court and on this appeal, respondent has made no effort to establish the existence of exceptional circumstances for her move to California (see, e.g., Matter of Skeval v Skeval, 210 A.D.2d 751, 751-752; Matter of Atkinson v Atkinson, 197 A.D.2d 771, 772; Matter of Radford v Propper, 190 A.D.2d 93, 98-100). Rather, she takes the approach that because petitioner rarely exercised his right to visitation with Andrew or provided support for him, her relocation to California would not deprive petitioner of "regular and meaningful access to the child" (Matter of Lake v Lake, 192 A.D.2d 751, 753; see, Matter of Bennett v Bennett, 208 A.D.2d 1042, 1043; cf., Matter of Dacey v Dacey, 214 A.D.2d 790). However, the evidence adduced at the hearing showed, and Family Court properly found, that although petitioner's contact with Andrew had been somewhat sporadic (particularly during a seven-year period when petitioner lived in Virginia in order to pursue employment opportunities there), he exercised regular visitation and made court-ordered support payments following his return to Chemung County in July 1992. We perceive no basis for disturbing Family Court's conclusion that "the move to California by respondent if effected, will `deprive [petitioner] of regular and meaningful access to [Andrew]'" (quoting Matter of Cassidy v Kapur, 164 A.D.2d 513, 516).
Cardona, P.J., White, Casey and Spain, JJ., concur. Ordered that the order is affirmed, without costs.