| Matter of Vargas v Dixon |
| 2010 NY Slip Op 08654 [78 AD3d 1431] |
| November 24, 2010 |
| Appellate Division, Third Department |
| In the Matter of Sinia I. Vargas, Respondent, v Christopher Dixon,Appellant. (And Four Other Related Proceedings.) |
—[*1] Eric R. Gee, Albany, attorney for the child.
Mercure, J.P. Appeal from an order of the Family Court of Albany County (M. Walsh, J.), enteredSeptember 14, 2009, which, among other things, granted petitioner's application, in five proceedingspursuant to Family Ct Act article 6, to modify a prior order of custody.
Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the unmarried parentsof a daughter who was born in 2001. Pursuant to a stipulation, Family Court granted the parties jointlegal custody, with primary physical custody to the mother and weekend visitation to the father. Theparties further agreed that the child's residence could be removed from the jurisdiction of Family Courtonly upon the express agreement of both parties. In 2009, the mother, who had moved to Florida, fileda petition seeking leave to relocate the child to Florida.[FN*]In response, the father cross-petitioned for physical custody. Following fact-finding [*2]and Lincoln hearings, Family Court granted the mother'srelocation petition, denied the father's cross petition, continued joint legal custody and physical custodywith the mother, modified the visitation schedule, and retained jurisdiction. The father appeals from thegrant of the mother's petition to relocate.
We affirm. Any "relocation request must be considered on its own merits with due consideration ofall the relevant facts and circumstances and with predominant emphasis being placed on what outcomeis most likely to serve the best interests of the child" (Matter of Tropea v Tropea, 87 NY2d727, 739 [1996]). Relevant factors and circumstances include "each parent's reasons for seeking oropposing the move, the quality of the relationships between the child and the custodial and noncustodialparents, the impact of the move on the quantity and quality of the child's future contact with thenoncustodial parent, the degree to which the custodial parent's and child's life may be enhancedeconomically, emotionally and educationally by the move, and the feasibility of preserving therelationship between the noncustodial parent and child through suitable visitation arrangements"(id. at 740-741). These factors provide the framework for resolving this matter despite the factthat the mother moved to Florida prior to commencing this proceeding (see Matter of Jelfo vArthur, 295 AD2d 689, 690 [2002]). Moreover, "although economic necessity or a specifichealth-related concern may present a particularly persuasive ground for permitting the proposed move,other justifications, including the demands of a second marriage . . . , may also be validmotives that should not be summarily rejected, at least where the over-all impact on the child would bebeneficial" (Matter of Tropea v Tropea, 87 NY2d at 739). We note that the mother, as theparty seeking to relocate, bore the burden of establishing by a preponderance of the evidence that theproposed move would be in the child's best interests (see Matter of Winn v Cutting, 39 AD3d 1000, 1001 [2007]; Matter of Willis-Marsh v Wilkerson, 22AD3d 977, 978 [2005]).
In that regard, while the mother conceded that there was no meaningful economic enhancement asa result of the move, Family Court properly considered the positive emotional impact that would resultif the child were permitted to remain with her mother—the child's primary caretaker—andhalf sister, with whom the child shared a close relationship. Indeed, the child expressed her wishes torelocate to Florida in order to maintain her close relationships with the mother and half sister. Inaddition, and as considered by the court, there was evidence that the mother was significantly moreinvolved in managing the child's educational and medical needs, and had concrete plans for the child'sfuture education, as opposed to the father who presented no evidence regarding his plans for the child'seducation or childcare if he received custody. Finally, while there was evidence that the child'srelationship with her father would be negatively impacted and that the mother had disparaged the father,the court credited the mother's testimony that the father had failed to regularly exercise visitation withthe child until 2009, and crafted a generous visitation schedule that would permit the child to spendmore time with the father than she had in the past. Considering the totality of the circumstances, a soundand substantial basis exists for Family Court's determination that the proposed relocation would be inthe child's best interests (see Matter ofWinston v Gates, 64 AD3d 815, 817-819 [2009]; Matter of Hills v Madrid, 57 AD3d 1175, 1177 [2008]; Matter ofWinn v Cutting, 39 AD3d at 1001-1002; cf. Matter of Willis-Marsh v Wilkerson, 22AD3d at 978-979).
Peters, Malone Jr., Stein and McCarthy, JJ., concur. Ordered that the order is affirmed, withoutcosts.
Footnote *: The mother also filed three otherpetitions seeking to hold the father in contempt for violating the visitation provisions of the prior custodyorder, suspension of the father's visitation, and to change the location of visitation.