| Matter of Cole v Reynolds |
| 2013 NY Slip Op 06901 [110 AD3d 1273] |
| October 24, 2013 |
| Appellate Division, Third Department |
| In the Matter of Jason P. Cole, Respondent, v GeorgiannaE. Reynolds, Appellant. |
—[*1] Guttman & Wallace, Ithaca (Andrea J. Mooney of counsel), for respondent. Mari K. Townsend, Ithaca, attorney for the child.
Spain, J. Appeal from an order of the Family Court of Tompkins County (Sherman,J.), entered April 2, 2012, which granted petitioner's application, in a proceedingpursuant to Family Ct Act article 6, to modify a prior order of custody.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) are theparents of a child (born in 1998). In 2003, after a full hearing, the father was granted solecustody of the child and the mother was granted parenting time consisting of oneovernight visit on alternating weekends, additional holiday visitation and two weeks ofsummer visitation (see Matter ofCole v Reynolds, 8 AD3d 703 [2004]).[FN*] In early 2012, the father commenced this proceeding by petition and amended petitionseeking permission to relocate with the child from his home in the City of Ithaca,Tompkins County to Bethesda, Maryland, which the mother opposed. After afact-finding hearing, Family Court granted the father's petition and modified the mother'sparenting time accordingly. The mother now appeals, and we affirm.[*2]
The party seeking to relocate with achild—here, the father—bears the burden of establishing by apreponderance of the credible evidence that the relocation is in the child's best interests(see Rose v Buck, 103AD3d 957, 958 [2013]; Matter of Shirley v Shirley, 101 AD3d 1391, 1392 [2012];Matter of Scheffey-Hohle vDurfee, 90 AD3d 1423, 1425 [2011], appeal dismissed 19 NY3d 876[2012]). Family Court must consider a number of relevant factors in making thisdetermination, including " 'each parent's reasons for seeking or opposing the move, thequality of the relationships between the child and the custodial and noncustodial parents,the impact of the move on the quantity and quality of the child's future contact with the[nonmoving] parent, the degree to which the [moving] parent's and child's life may beenhanced economically, emotionally and educationally by the move, and the feasibility ofpreserving the relationship between the [nonmoving] parent and child through suitablevisitation arrangements' " (Matter of Adams v Bracci, 91 AD3d 1046, 1047 [2012],lv denied 18 NY3d 809 [2012], quoting Matter of Tropea v Tropea, 87NY2d 727, 740-741 [1996]; see Rose v Buck, 103 AD3d at 958; Matter of Munson v Fanning,84 AD3d 1483, 1484 [2011]). Notably, as "Family Court is in the best position tomake factual findings and credibility determinations, its decision will not be disturbed ifit is supported by a sound and substantial basis in the record" (Matter of Pizzo v Pizzo, 94AD3d 1351, 1352 [2012]; accord Matter of Batchelder v BonHotel, 106 AD3d 1395,1396 [2013]; Matter of Weber vWeber, 100 AD3d 1244, 1245-1246 [2012]).
Here, the father has been the primary caretaker for the now 15-year-old child sinceshe was five years old. His household consists of himself, his wife, the child and theirthree-month-old son, all of whom have a close and supportive family relationship. As tothe reasons for and the economic factors surrounding the proposed relocation, the fatherhas a Master's degree in biomedical engineering but, at the time of the hearing, he wasemployed as a regional sales executive selling medical devices and not working in histrained and desired field. Although he earned approximately $115,000 in 2011, FamilyCourt's finding that his average salary in this position is around $75,000—as hispay was based solely on commissions that have varied greatly over the years—issupported by the record, which includes the joint tax returns of the father and his wifetogether with their testimony. While diligently searching for a job closer to home in hisdesired profession, the father was offered a position with the U.S. Navy as acommissioned officer in the Medical Service Corps, to be stationed at Bethesda NavalHospital (compare Matter of Grathwol v Grathwol, 285 AD2d 957, 959 [2001];Thompson v Smith, 277 AD2d 520, 522 [2000]). While the base salary of thisposition is approximately $40,000, the father would also receive, among other things, atax-free housing allowance of approximately $28,000 per year, a subsistence allowanceof $2,880 per year, deferment of his student loans with the possibility of the cancellationof the total amount of his loans ($60,000), retirement benefits and health insurancecoverage for his entire family. The father's current position does not provide healthinsurance for the child, who has specific medical needs (compare Matter of Adams vBracci, 91 AD3d at 1047), and, despite the reduction in the father's base salary,Family Court's finding that the father's proposed new employment would provideapproximately equal economic benefits as his existing position is also supported by therecord.
The mother's household consists of herself, her partner, their children—agessix and eight—and the mother's 17-year-old son from a prior relationship. Themother opposes the relocation because the long distance would hinder the child'srelationship and the frequency of parenting time with her, as well as with the child's halfsiblings, with whom the child has good relationships. Significantly, however, she hasrarely asked for more time with the child and has never petitioned Family Court for anyformal expansion of her limited time. The father's wife recognized the importance ofcontinuing to foster a close relationship between the child and the [*3]mother and half siblings; the wife indicated that, in additionto any ordered visits, there would be additional opportunities for visits, as they wouldoften be traveling to places near the mother's home in Tioga County when visiting theirparents and extended family in nearby Broome and Tompkins Counties, and they wouldencourage phone calls and online video chats with the mother and half siblings(compare Matter of Shirley v Shirley, 101 AD3d at 1393; Malcolm v Jurow-Malcolm, 63AD3d 1254, 1257-1258 [2009]).
Additionally, the record demonstrates that, while the father and his wife aresubstantially involved in the child's social, educational and extracurricular activities, themother's involvement, in contrast, has been essentially limited to the scheduled alternateweekend parenting time, and she has had minimal involvement or knowledge of thechild's educational development or social life (compare Rose v Buck, 103 AD3dat 959-961; Matter of Scheffey-Hohle v Durfee, 90 AD3d at 1426-1427;Matter of Munson v Fanning, 84 AD3d at 1484; Matter of Jelfo v Arthur,295 AD2d 689, 691 [2002]; Matter of Kryvanis v Kruty, 288 AD2d 771, 772[2001]). Also, the record reflects that the father and his wife have substantial knowledgeof and have closely monitored the child's medical and dietary needs, while the mother hasonly a basic familiarity with those needs (compare Matter of Sniffen v Weygant, 81 AD3d 1054,1056 [2011], appeals dismissed 16 NY3d 886 [2011], 17 NY3d 884 [2011]; Matter of Vargas v Dixon, 78AD3d 1431, 1432-1433 [2010]). As to educational opportunities, among otherthings, the father and the child visited a high school in the area where they expect to live,which would provide—in addition to her education—the opportunity for thechild's desired extracurricular activities, and it is evident that the child makes new friendseasily (cf. Matter of Feathers vFeathers, 95 AD3d 1622, 1624 [2012]). In contrast, there was testimony that theacademic and extracurricular activities of her current high school were subject to budgetcuts.
While Family Court aptly recognized the fact that relocation would negatively impactthe frequency of the child's time with her mother and half siblings, it expanded theexisting schedule by awarding time during Thanksgiving or Christmas in alternatingyears, one week during spring recess, three weeks in August and regularly scheduledweekly 30-minute "Skype" or telephone calls between the child, her mother and her halfsiblings, with the father incurring all transportation costs (compare Thompson vSmith, 277 AD2d at 522; Satalino v Satalino, 273 AD2d 632, 633 [2000]).Based upon the foregoing, we agree that the father met his burden of demonstrating by apreponderance of the evidence that it is in the child's best interests to relocate with herpaternal family (see Rose v Buck, 103 AD3d at 958). Upon our review of therecord, it is clear that Family Court carefully considered the relevant factors and that itsdecision is supported by a sound and substantial basis in the record (see Matter ofGrathwol v Grathwol, 285 AD2d 957, 958 [2001]).
Rose, J.P., Garry and Egan Jr., JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *: This order was modifiedby an August 2008 order to prohibit unsupervised contact between the child and a formerparamour of the mother, but left the parenting time schedule intact.