Opinion
2014-05-2
In the Matter of Mark QUISTORF, Petitioner–Appellant, v. Tonia M. LEVESQUE, Respondent–Respondent.
Trotto Law Firm, P.C., Rochester (Jonathan C. Trotto of Counsel), for Petitioner–Appellant. Karen Smith Callanan, Rochester, for Respondent–Respondent.
Trotto Law Firm, P.C., Rochester (Jonathan C. Trotto of Counsel), for Petitioner–Appellant. Karen Smith Callanan, Rochester, for Respondent–Respondent.
Matthew J. Fero, Attorney for the Children, Rochester.
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, LINDLEY, and VALENTINO, JJ.
MEMORANDUM:
Petitioner father commenced this proceeding seeking, inter alia, “sole custody” and “primary residency” of the parties' children after respondent mother relocated to Maine with the children without the father's consent, and the mother cross-petitioned for “primary residency of the children with periods of residency” with the father. The father appeals from an order in which Family Court, inter alia, granted the mother's cross petition. We affirm.
Inasmuch 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” (Matter of Saperston v. Holdaway, 93 A.D.3d 1271, 1272, 940 N.Y.S.2d 728,appeal dismissed19 N.Y.3d 887, 948 N.Y.S.2d 577, 971 N.E.2d 858,20 N.Y.3d 1052, 961 N.Y.S.2d 828, 985 N.E.2d 423;see Matter of Moore v. Kazacos, 89 A.D.3d 1546, 1546, 932 N.Y.S.2d 788,lv. denied18 N.Y.3d 806, 2012 WL 446225). “Although a court may consider the effect of a parent's relocation as part of a best interests analysis, relocation is but one factor among many in its custody determination” ( Saperston, 93 A.D.3d at 1272, 940 N.Y.S.2d 728;see Matter of Torkildsen v. Torkildsen, 72 A.D.3d 1405, 1406, 900 N.Y.S.2d 193).
Giving deference to the court's assessment of the credibility of the witnesses, we conclude that the court's determination to award the mother primary residency of the children has a sound and substantial basis in the record ( see Matter of Cross v. Caswell, 113 A.D.3d 1107, 1107, 977 N.Y.S.2d 853;Matter of Thillman v. Mayer, 85 A.D.3d 1624, 1625, 926 N.Y.S.2d 779;Salerno v. Salerno, 273 A.D.2d 818, 818, 708 N.Y.S.2d 539). The mother had been the children's primary caretaker since their birth and was more involved in the children's lives than the father. Although the children's relocation arguably has had a negative impact on the children's relationship with the father, “relocation is not a proper basis upon which to award primary physical custody to [the father] ... inasmuch as the children will need to travel between the parties' two residences regardless of which parent is awarded primary physical [residency]” ( Sitts v. Sitts, 74 A.D.3d 1722, 1723, 902 N.Y.S.2d 274,lv. dismissed15 N.Y.3d 833, 909 N.Y.S.2d 8, 935 N.E.2d 799,lv. denied18 N.Y.3d 801, 2011 WL 6155555;see Saperston, 93 A.D.3d at 1272, 940 N.Y.S.2d 728).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.