| Matter of Sara ZZ. v Matthew A. |
| 2010 NY Slip Op 07422 [77 AD3d 1059] |
| October 21, 2010 |
| Appellate Division, Third Department |
| In the Matter of Sara ZZ., Respondent, v Matthew A., Appellant.(And Another Related Proceeding.) |
—[*1] Suzanne V. Reine, Ithaca, for respondent. William L. Koslosky, Utica, attorney for the child.
McCarthy, J. Appeal from an order of the Supreme Court (Rowley, J.), entered March 17,2009 in Tompkins County, which, among other things, granted petitioner's application, in twoproceedings pursuant to Family Ct Act article 6, to modify a prior order of custody.
Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the parents ofone son (born in 2000). As a result of previous proceedings under Family Ct Act articles 6 and10—wherein the father was found to have neglected the parties' child, the mother's otherson and one of the father's daughters—the mother was granted sole custody of the parties'son. The father was granted visitation, but the duration was ultimately reduced to one supervisedhour per week. The mother filed a petition for permission to relocate to South Carolina. Thefather opposed her petition and filed a petition seeking increased and unsupervised visitation.Following a hearing, Supreme Court granted the mother's application and denied the father's[*2]application.[FN*]The father appeals.
Supreme Court's decision granting the mother's petition to relocate was supported by a soundand substantial basis in the record. The court considered the appropriate factors, including thechild's relationship with each parent, the effect of the move on contact with the noncustodialparent, the potential enhancement to the custodial parent and child due to the move, and eachparent's motives for seeking or opposing the move (see Matter of Tropea v Tropea, 87NY2d 727, 740 [1996]; Matter ofSolomon v Long, 68 AD3d 1467, 1469 [2009]; Matter of Smith v Hoover, 24 AD3d 1096, 1096-1097 [2005]).After hearing the testimony of both parties and several other witnesses, the court found that themother wanted to relocate to start fresh, away from the intimidation of the father who waspreviously found to have committed acts of domestic violence against her. The court found thatthe father opposed the move to harass the mother and because he wanted to continue exercisingcontrol over the mother and her life. He made harassing phone calls to her, intimidatedsupervisors of visits and exchanges, and admitted that he ended a relationship the mother hadwith another man. Although the father was engaged in individual counseling and a domesticviolence education program and appeared to have made some progress in addressing his angerissues, he continued to hedge his acknowledgment and responsibility for engaging in domesticviolence and physical aggression against the mother. The court noted that relocation wouldpermit the mother to start a new life without the fear and stress associated with potentialcommunity contact with the father (see Matter of Sheridan v Sheridan, 204 AD2d 771,773-774 [1994]).
Many paternal family members of the mother's two children live in South Carolina and sheintended to live near them and receive support from them. While the father expressed concernsthat his family members in South Carolina were violent and abused drugs and alcohol, he had notseen some of them in nearly 20 years, and he had not spoken to any of them in approximately oneyear. The father mentioned his own father in New York as a reason to oppose the move for thechild's sake, but this family member had a violent past, used drugs and the father had not been incontact with him. The father's concerns about his brother who lived in South Carolina may havebeen legitimate, as the brother had been in prison for drug possession and had previously burnedthe mother's possessions. On the other hand, the father bore ill will against his brother, who had achild with the mother shortly after she ended her relationship with the father. Supreme Courtaccepted the mother's testimony that she was not planning to live with the brother, though she didintend to co-parent their common child. The mother also encouraged her son's relationship withhis two half sisters, the father's daughters. The father's parental rights were terminated as to theolder daughter, the younger daughter was placed in foster care due to his neglect of her and at thetime of the hearing neither daughter had a relationship with the father.
The mother attended meetings at the child's school, medical appointments and athleticevents. The father generally did not attend these functions. The mother looked into housing,potential jobs and school arrangements in South Carolina and was prepared to transfer the son'seducational programming if the move was approved. She planned to move into a three-bedroom[*3]house and had made financial arrangements for the rent,which would improve the situation over her temporary quarters in her mother's home in NewYork. Additionally, the mother planned to return to Tompkins County, where her parents andbrother live, during the holidays and the summer to permit visitation between her son and thefather, as well as between the son and his half sisters. Giving deference to Supreme Court'scredibility determinations, and noting its consideration of the appropriate factors, the court didnot err in determining that relocation was in the child's best interests and granting the mother'spetition (see Matter of Winston vGates, 64 AD3d 815, 818-819 [2009]; Matter of Smith v Hoover, 24 AD3d at1097-1098).
The mother violated a temporary order by moving to South Carolina following the hearingbut prior to Supreme Court issuing its decision. Despite this violation, the court had discretion inconsidering the father's motion for contempt and did not abuse its discretion by declining to holdher in contempt and instead issuing a new temporary order permitting the relocation (seeMatter of Whiteco Metrocom Div. of Whiteco Indus. v Lambert, 221 AD2d 750, 751 [1995];Educational Reading Aids Corp. v Young, 175 AD2d 152, 152 [1991]; Dickson vFerullo, 96 AD2d 745 [1983]).
Spain, J.P., Rose, Kavanagh and Egan Jr., JJ., concur. Ordered that the order is modified, onthe facts, without costs, by permitting the mother to move to South Carolina rather than NorthCarolina, and, as so modified, affirmed.
Footnote *: The order states that the motheris allowed to move to North Carolina. As she never sought to move to that state, we correct thisapparent typographical error to permit her to move to South Carolina.