| Matter of Streid v Streid |
| 2007 NY Slip Op 09996 [46 AD3d 1155] |
| December 20, 2007 |
| Appellate Division, Third Department |
| In the Matter of Scott W. Streid, Respondent-Appellant, v AmandaL. Streid, Appellant-Respondent. (And Two Other RelatedProceedings.) |
—[*1] Scott W. Streid, Richfield Springs, respondent-appellant pro se. Tracy A. Donovan Laughlin, Law Guardian, Cherry Valley.
Mercure, J. Cross appeals from an order of the Family Court of Otsego County (Burns, J.),entered February 22, 2007, which, among other things, dismissed petitioner's application, in threeproceedings pursuant to Family Ct Act article 6, for custody of the parties' children.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the parents oftwo children, born in 1998 and 2000. In July 2006, the father filed a petition seeking custody ofthe children, after the mother removed them from the marital home and relocated to Georgiawithout his consent. The father was granted temporary custody and filed a violation petition afterthe mother took the children back to Georgia in violation of Family Court's order. The mothersubsequently filed a family offense petition, alleging that she had removed the children to escapethe father's domestic violence, and a petition seeking custody and permission to permanentlyrelocate the children to Georgia. Following fact-finding and Lincoln hearings, FamilyCourt [*2]granted the mother custody of the children anddirected, among other things, that she be evaluated at a chemical dependencies clinic and followany recommended course of counseling regarding her abuse of alcohol. The court alsodetermined that in the event that the mother moved to Georgia, the best interests of the childrenwould require transfer of custody to the father. The parties' cross appeal.[FN*]
Initially, we note that the mother is correct that a strict application of the factors set forth inMatter of Tropea v Tropea (87 NY2d 727 [1996]) is not required when there is no prioraward of custody (see Furman v Furman, 298 AD2d 627, 628-629 [2002], lvdismissed and denied 99 NY2d 575 [2003]). Nevertheless, a parent's "decision to reside in adistant locale [is] 'a very important factor' among the constellation of factors [to be] considered inarriving at [a] best interests determination, [particularly where] there [is] evidence that it woulddetrimentally affect" the other parent's relationship with the children (Matter of Siler vSiler, 293 AD2d 826, 828 [2002], appeal dismissed 98 NY2d 691 [2002]; seeFurman v Furman, 298 AD2d at 629-630; Osborne v Osborne, 266 AD2d 765,767-768 [1999]). Other relevant factors to be considered include " 'the ages of the children,fitness of the parents, quality of the home environment, each parent's ability to provide for thechild[ren's] intellectual and emotional development, and the effect . . . the award ofcustody to one parent would have on the child[ren's] relationship with the other' " (Osborne vOsborne, 266 AD2d at 765 [citation omitted]; see Matter of Storch v Storch, 282AD2d 845, 846 [2001], lv denied 96 NY2d 718 [2001]).
Here, after considering the mother's role as the primary caregiver and the father's strongrelationship with the children and significant involvement in their educational and extracurricularactivities, as well as the incidents of domestic violence perpetrated by both parties and themother's alcohol abuse, Family Court determined that both parents are equally fit. As the courtnoted, the primary advantage of an award of custody to the mother—provided that sheremains in New York—is the stability afforded to the children by allowing them to remainin the marital residence with their primary caregiver. We further agree with Family Court that themother's assertions that a move to Georgia would enhance the children's lives " 'economically,emotionally [or] educationally' " (Furman v Furman, 298 AD2d at 629 [citation omitted])are speculative at best. Moreover, the record evinces that the children are performing well inschool, have many friends, are involved in various extracurricular activities and enjoy spendingtime with both parents. While the children expressed a desire to return to Georgia, theirtestimony during the Lincoln hearing revealed substantial influence on them to expresssuch a desire to Family Court (see generally Eschbach v Eschbach, 56 NY2d 167, 173[1982]). Finally, a move to Georgia would deprive the children of meaningful contact with boththe father—given the parties' financial situation—and the paternal grandparents,who are relocating from Georgia to New York.
In short, giving due deference to Family Court's factual findings, we conclude that thedetermination conditioning the award of custody to the mother on her remaining in New York issupported by a sound and substantial basis in the record (see Furman v Furman, 298AD2d at 629-630; Matter of Siler v Siler, 293 AD2d at 827-828; cf. Matter ofSpencer v Small, 263 AD2d [*3]783, 785 [1999]; Matterof Buell v Buell, 258 AD2d 709, 709-710 [1999]. Accordingly, we decline to disturb thatdetermination here.
Cardona, P.J., Crew III, Carpinello and Lahtinen, JJ., concur. Ordered that the order isaffirmed, without costs.
Footnote *: Inasmuch as the father did notfile a brief and seeks only affirmance of Family Court's order, we deem his cross appeal to beabandoned (see Matter of Chan vTravis, 3 AD3d 820, 820 [2004]).