| Matter of Batchelder v BonHotel |
| 2013 NY Slip Op 03887 [106 AD3d 1395] |
| May 30, 2013 |
| Appellate Division, Third Department |
| In the Matter of James Batchelder,Respondent, v Keeley BonHotel, Appellant. (And Two Other RelatedProceedings.) |
—[*1] Michael S. Martin, Glens Falls, for respondent. Rose T. Place, Glens Falls, attorney for the child.
Egan Jr., J. Appeal from an order of the Family Court of Warren County (Breen, J.),entered January 17, 2012, which, among other things, partially granted petitioner'sapplication, in a proceeding pursuant to Family Ct Act article 6, to modify a prior orderof custody.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) are theunmarried parents of a son (born in 2008). After the parties separated in 2009, theyconsented to an order of joint legal custody, with primary physical custody to the motherand alternating weekend visitation to the father. Thereafter, the father consistentlyexercised his visitation with the child, and the child, in turn, benefitted from meaningfulcontact with both of his parents.
In March 2011, the mother was evicted from her apartment in Warren County; withina matter of days, the mother made plans to move with the child—and two of herchildren from prior relationships—to Decatur, Alabama in order to live with herfiancÉ, whom she had met online five months earlier. The mother did not informthe father of her plans until the night prior to the scheduled departure, nor did she obtainthe father's consent or Family Court's permission [*2]prior to relocating.[FN1]
The father promptly commenced two of the proceedings now before us—onealleging a violation of the prior custody order and the other seeking, among other things,sole legal and physical custody of the child. In response, the mother commenced aseparate proceeding requesting, among other things, permission to relocate with the childto Alabama. Family Court ordered that the child be returned to New York and awardedtemporary custody to the father.
At the conclusion of the hearing that followed, Family Court found, among otherthings, that the father met his burden of establishing a substantial change incircumstances warranting a modification of the prior custody order and, further, that theproposed relocation was not in the child's best interests. Accordingly, Family Courtawarded the parties joint legal custody of the child with primary physical custody to thefather and visitation to the mother.
Initially, the parties do not dispute that the mother's relocation to Alabamaconstituted a sufficient change in circumstances warranting modification of the existingcustody arrangement; hence, the issue distills to whether Family Court properly deniedthe mother's request to relocate and, further, whether the resulting award of physicalcustody to the father was in the child's best interests (see Matter of Sofranko v Stefan, 80 AD3d 814, 815[2011]). As the party seeking to relocate, the mother bore the burden of proving by apreponderance of the credible evidence that the proposed relocation would be in thechild's best interests (see Matterof Shirley v Shirley, 101 AD3d 1391, 1392 [2012]; Matter of Munson v Fanning,84 AD3d 1483, 1484 [2011]; Matter of Sofranko v Stefan, 80 AD3d at 815).Resolution of that issue, in turn, requires a court to consider numerous factors, "includingthe child's relationship with each parent, the effect of the move on contact with thenoncustodial parent, the potential enhancement to the custodial parent and child due tothe move, and each parent's motives for seeking or opposing the move" (Matter of Sara ZZ. v MatthewA., 77 AD3d 1059, 1060 [2010]; see Matter of Tropea v Tropea, 87NY2d 727, 740-741 [1996]; Matter of Williams v Williams, 90 AD3d 1343, 1344[2011]). Given that Family Court is in the best position to make factual findings andcredibility determinations, its decision will not be disturbed if it is supported by a soundand substantial basis in the record (see Scott VV. v Joy VV., 103 AD3d 945, 946 [2013],lv denied 21 NY3d 909 [2013]).
Although the mother contends that her fear of impending homelessness prompted herrelocation out of state, the record reflects that the mother's desire to be with herfiancÉ, whom she had met only months before, was the true impetus behind themove. Notably, the mother quit her job—her sole source of income aside fromchild support and government assistance—in order to relocate to Alabama, whereshe remains completely dependent upon her fiancÉ and has neither a plan nor themeans by which to support her children should her romantic relationshipterminate.[FN2][*3]Indeed, at the time of the hearing, the mother wasunemployed and living off of the child support received for another child and her fiance'sincome. To the extent that the mother asserted that Alabama offered greater diversity andenhanced cultural opportunities for the child, no proof was submitted to substantiatethese claims. Similarly, although the mother testified that Alabama schools are superiorin that "they really focus on the needs of the child," she failed to offer any proof fromwhich Family Court reasonably could conclude that the Alabama school system was asignificant improvement over the school system in Warren County (see Matter of Scheffey-Hohle vDurfee, 90 AD3d 1423, 1428 [2011], appeal dismissed 19 NY3d 876[2012]; Matter of Williams v Williams, 90 AD3d at 1344-1345).[FN3]
As to the quality of the child's relationship with his respective parents, it is clear thateach parent loves the child and desires to spend time with him and that he, in turn, has aclose and loving relationship with each of them. Although the mother enjoyed primaryphysical custody up until the time she relocated to Alabama, the father consistentlyexercised his visitation, and it is clear from the record that the proposed relocation wouldbe highly detrimental to the father's existing relationship with thechild—particularly in light of the distance involved and the father's testimony as tohis limited ability to fund transportation between New York and Alabama.
For these reasons, we are not persuaded that the mother has met her burden ofestablishing that relocation would substantially enhance the child's economic, emotionalor educational well-being. Accordingly, we find a sound and substantial basis for FamilyCourt's determination that permitting the child to relocate to Alabama would not be in hisbest interests (see Matter of Williams v Williams, 90 AD3d at 1344-1345;Matter of Munson v Fanning, 84 AD3d at 1485).
We also see no reason to disturb Family Court's decision to award primary physicalcustody of the child to the father. In contrast to the mother's complete dependence uponher fiancÉ for shelter and financial support, the father is gainfully employed andhas established that he has the financial ability to care for the child. Although it is truethat neither the mother nor the father own their respective residences (the father'sgirlfriend owns the trailer in which he resides), unlike the mother and her fiancÉ,the father and his girlfriend have lived together for a number of years and, therefore, arebetter positioned to offer the child a stable living environment. Additionally, the father'sgirlfriend has a son from a prior relationship who is close in age to the subject child, andthe two enjoy a positive relationship.
Finally, the record reflects that the father recognizes the importance of themother-son relationship and has demonstrated a willingness to foster a positiverelationship between the child, the mother and himself by, among other things,facilitating video conversations between the mother and the child via Skypeapproximately two to three times per week. The mother, on the other hand, does notappear to recognize or value the relationship between the father and the [*4]child—referring to the father as the child's"biological father," omitting him from what she regards as the child's family and,significantly, failing to provide the father with her new contact information upon arrivingin Alabama. As an example of the mother's apparent hostility in this regard, the fathertestified that the mother repeatedly has instructed the child that the father's house "is not[his] home," stating instead, "[W]hen you are with Mom[,] you are home. You are justwith your Dad, that is not your home" (emphasis added).
Despite both parents' desire to spend time with the child, Family Court reasonablyconcluded that the father was the parent more likely to foster a positive relationshipbetween the child and the noncustodial parent and, further, was better able to provide astable living environment for the child. As Family Court's decision to award primaryphysical custody to the father is supported by a sound and substantial basis in the recordas a whole, it will not be disturbed (see Matter of Ames v Ames, 97 AD3d 914, 916-917[2012], lv denied 20 NY3d 852 [2012]). The mother's remaining arguments, tothe extent not specifically addressed, have been examined and found to be lacking inmerit.
Lahtinen, J.P., McCarthy and Garry, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: Although Family Courtindicated that the mother filed a petition seeking to relocate with the child two days priorto informing the father of the move, that petition does not appear in the record on appeal.
Footnote 2: As of the hearing,although the mother and her fiancÉ had scheduled a wedding date, both were stillmarried to their former spouses and had taken no affirmative steps to terminate theirprevious marriages.
Footnote 3: Notably, the motherindicated that her dissatisfaction with the middle school stemmed primarily from thedifficulties she encountered in obtaining bus transportation for her older son, who has asensitivity to cold weather.