| Matter of Torkildsen v Torkildsen |
| 2010 NY Slip Op 03500 [72 AD3d 1405] |
| April 29, 2010 |
| Appellate Division, Third Department |
| In the Matter of Heather M. Torkildsen, Respondent, v Thomas P.Torkildsen, Appellant. (And Three Other Related Proceedings.) |
—[*1] Paul F. Tomkins, Chenango Bridge, for respondent. Susan B. Marris, Law Guardian, Manlius.
Peters, J.P. Appeal from an order of the Family Court of Chenango County (Sullivan, J.),entered November 12, 2008, which, among other things, granted petitioner's application, in aproceeding pursuant to Family Ct Act article 6, for custody of the parties' children.
Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the marriedparents of a son (born in 2002) and a daughter (born in 2005). The parties are both long-timeresidents of New Jersey and have at all times resided as a couple with one of their respectiveparents. In October 2004, they moved to the Town of Afton, Chenango County along withmembers of the father's family to pursue a family venture on a 138-acre farm purchased by thefather's mother and stepfather.
According to the mother, she was verbally degraded by the father over the course of thefollowing years, with the acrimony between the two escalating to physical violence on March 13,2008. The following day, the mother made arrangements to temporarily take the children to NewJersey to stay with her parents. Having suspicions that the mother was planning to leave the area,the father and his mother confronted the mother at the son's elementary school, at which time the[*2]father physically assaulted the mother's brother-in-law andhung from the mother's vehicle as it was being driven away.
Immediately thereafter, the mother filed a family offense petition and a petition seekingcustody of the children and permission to relocate with them to New Jersey. Family Court issuedtemporary orders of protection and custody in favor of the mother, who thereafter relocated withthe children to her parents' home in New Jersey. After the father cross-petitioned for custody,Family Court ordered the mother to relocate back to the Afton area pending a full hearing andestablished a visitation schedule. Following a fact-finding hearing, Family Court awarded theparties joint legal custody with primary physical custody to the mother in New Jersey and liberalvisitation to the father.[FN*]The father now appeals.
In rendering this initial custody determination, "Family Court was required to consider thebest interests of the children by reviewing such factors as maintaining stability for the children,the children's wishes, the home environment with each parent, each parent's past performance,relative fitness, ability to guide and provide for the children's overall well-being, and thewillingness of each parent to foster a relationship with the other parent"(Matter of Smith v Smith, 61 AD3d1275, 1276 [2009] [internal quotation marks, citations and brackets omitted]; see Matter of Richardson v Alling, 69AD3d 1062, 1063 [2010]; Matterof Wentland v Rousseau, 59 AD3d 821, 822 [2009]). Where, as here, one parent intendsto relocate a distance away from the other parent, the effect of the move factors into the bestinterests analysis (see Malcolm vJurow-Malcolm, 63 AD3d 1254, 1255-1256 [2009]; Matter of Siler v Siler, 293AD2d 826, 828 [2002], appeals dismissed 98 NY2d 691, 720 [2002]; Rolls vRolls, 243 AD2d 906, 907 [1997]). Recognizing the advantageous position of Family Courtto evaluate the testimony and assess the credibility of witnesses, we accord great deference tothat court's custodial determination provided that it is supported by a sound and substantial basisin the record (see Matter of Marchand vNazzaro, 68 AD3d 1216, 1217 [2009]; Matter of Diffin v Towne, 47 AD3d 988, 990 [2008], lvdenied 10 NY3d 710 [2008]).
The evidence at the hearing established that the mother has been the primary caretaker forthe children and most attentive to their health and educational needs. Furthermore, she hasmaintained a steady employment history and received a nearly 50% wage increase upon hertransfer to one of her employer's stores in New Jersey. Evidence was also presented that themother consistently put her children's needs ahead of her own and is able to foster a relationshipbetween the father and the children, as demonstrated by her willingness to provide alltransportation to and from New York in order to facilitate regular visitation with the father. Incontrast, the father lacks stable employment and has a history of mental and physical abusetowards the mother. He regularly made demeaning comments to the mother concerning herweight and facial complexion, threatened to "smack" her and, on one occasion, put her in achoke hold and pushed her to the ground. Family Court also credited the testimony regarding thephysical incidents between the parties that precipitated the mother's move.
The children, who have a significant relationship with both sets of grandparents, would havea stable home residing with either parent in the home of their paternal or maternal [*3]grandparents, but they would have increased access to theirextended families if residing with the mother in New Jersey. Although the mother's move to NewJersey will necessarily affect the father's time with his children, the parties traveled there at leastonce a month and for all major holidays while living in the Afton area, and the father continuesto receive regular and meaningful periods of parenting time under the schedule set by FamilyCourt (see Malcolm v Jurow-Malcolm, 63 AD3d at 1255; Matter of Bodrato vBiggs, 274 AD2d 694, 696 [2000]). In light of all these factors, and giving due deference toFamily Court's findings and credibility determinations (see Matter of Kowatch v Johnson, 68 AD3d 1493, 1496 [2009],lv denied 14 NY3d 704 [2010]), we conclude that the custody award is supported by asound and substantial basis in the record and we decline to disturb it. Finally, although notdeterminative, we note that this conclusion is in accord with the Law Guardian's position both atthe hearing and on this appeal (seeMatter of Siler v Wright, 64 AD3d 926, 929 [2009]; Matter of Armstrong v Crout, 33 AD3d 1079, 1082 [2006]).
Lahtinen, Malone Jr., Stein and Garry, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *: Family Court further found thata family offense had been committed and issued an order of protection against the father. Thefather does not challenge that determination on this appeal.