| Matter of Parish A. v Jamie T. |
| 2008 NY Slip Op 02650 [49 AD3d 1322] |
| March 21, 2008 |
| Appellate Division, Fourth Department |
| In the Matter of Parish A., Respondent, v Jamie T.,Appellant. |
—[*1] Proven and Quencer, Watertown (Lisa A. Proven of counsel), for petitioner-respondent. Monica R. Barile, Law Guardian, New Hartford, for Trenton W.A. and NathanielT.A.
Appeal from an order of the Family Court, Lewis County (Hugh A. Gilbert, J.), enteredFebruary 27, 2007 in a proceeding pursuant to Family Court Act article 6. The order, amongother things, granted the petition and awarded petitioner sole custody of the parties' children.
It is hereby ordered that the order so appealed from is unanimously reversed on the law andfacts without costs, the petition is denied, the amended cross petition is granted and the matter isremitted to Family Court, Lewis County, for further proceedings in accordance with thefollowing memorandum: Petitioner father commenced this proceeding in February 2006 seekingprimary physical custody of the parties' two children, and respondent mother filed a cross petitionin which she sought permission for the parties' children to relocate with her to Albany, but shethereafter filed an amended cross petition in which she sought permission for the children torelocate with her to North Carolina. The mother contends on appeal that Family Court erred ingranting the petition and in sua sponte granting the father sole custody of the children as well,and instead should have granted her amended cross petition. We agree with the mother. We notethat, although the order recites that the father "shall have sole physical custody of the children,"in its underlying decision the court states that the father is awarded "sole custody" and, to theextent that there is a discrepancy between the order and the decision, the latter controls (seeMatter of Edward V., 204 AD2d 1060 [1994]).
Pursuant to the parties' judgment of divorce, the parties agreed to equal joint physicalcustody of their children, and both parties resided in Harrisville, New York until the motherremarried in February 2005. When the mother moved to Ravena, New York several months lateras a result of her husband's employment, she agreed that the children should reside with theirfather in order to complete that school year, and she exercised extensive visitation on theweekends and during school vacations. By June 2006, the relocation request of the mother hadchanged from Albany to North Carolina, based on a change in her husband's employment. Themother testified at the hearing on the petition and amended cross petition that she believed thatthe father had agreed that the children would reside with her during the 2006-2007 school year.[*2]We agree with the mother that the court's determination lacksa sound and substantial basis in the record and that she established that relocation is in thechildren's best interests (cf. Matter ofJennifer L.B. v Jared R.B., 32 AD3d 1174, 1175 [2006])."In order to establish her entitlement to an order permitting the children to relocate with her,[the mother] was required to establish 'by a preponderance of the evidence that [the] proposedrelocation would serve the child[ren]'s best interests' " (id. at 1175, quoting Matter ofTropea v Tropea, 87 NY2d 727, 741 [1996]). Although "no single factor should be treated asdispositive or given disproportionate weight as to predetermine the outcome" (Tropea, 87NY2d at 738), "predominant emphasis [should be] placed on what outcome is most likely toserve the best interests of the child[ren]" (id. at 739). As the Court of Appeals has noted,"[w]hile some courts have suggested that [a parent's] remarriage or wish for a 'fresh start' cannever suffice to justify a distant move . . . , such a rule overlooks the value for thechildren that strengthening and stabilizing the new, postdivorce family unit can have in aparticular case" (id.). Further, "[m]ost moves outside of . . . [a] parent'slocale have some disruptive effect on that parent's relationship with the child" (id. at737).
Here, the court based its determination primarily on its conclusion that the relocation wouldhave a negative impact on the children's future contact with the father. The court's findings,however, do not warrant such a conclusion. Indeed, the court found that the children'srelationship with the father could be preserved despite the relocation, through regular contact bytelephone and e-mail, and through visitation during the summer and school vacations. The courtfound that both parties would insure that the relationship between the children and thenoncustodial parent would be maintained. Further, the court did not give adequate weight to theeducational advantage to the children that relocation would provide, particularly to the child witha history of educational difficulties. In addition, the court did not give adequate weight to theimpact of the relationship between the children and the father's live-in girlfriend, who was theirart teacher. There was evidence of tension and concern with respect to the parent/teacher "blur"in their relationship, based on the girlfriend's role as both a quasi-parent figure and the children'steacher, and there was evidence that one of the children had difficulties at school because of therelationship between the father and his girlfriend. We thus conclude that the court did notproperly weigh all of the evidence in determining the best interests of the children.
As noted by the Court in Tropea, "there are . . . many cases where lessfrequent but more extended visits over summers and school vacations would be equallyconducive, or perhaps even more conducive, to the maintenance of a close parent-childrelationship" (id. at 738), and we conclude that this is such a case. It is in the bestinterests of the children to spend time with their father and his live-in girlfriend when school isnot in session since, in our view, a better father-child relationship will be fostered with such anarrangement.
Finally, as previously noted, the court sua sponte granted the father sole custody, and weconclude on the record before us that the parties' relationship is not so acrimonious as to warrantmodification of the parties' existing joint custody arrangement (see Matter of Lynch v Tambascio, 1AD3d 816, 817 [2003]; cf. Matterof Christopher J.S. v Colleen A.B., 43 AD3d 1350 [2007]). "It is well settled that jointcustody is appropriate where[, as here,] the parents are able to communicate in a harmonious andreasonable fashion . . . [and that, under such circumstances, they] should have jointdecision-making authority on issues which form a profound part of the children's lives"(Matter of Thompson v Thompson, 267 AD2d 516, 518-519 [1999]). We thereforereverse the order, deny the father's petition, grant the mother's amended cross petition seekingpermission for the children to relocate with her to North Carolina and remit the matter to FamilyCourt to determine an appropriate transfer date before the start of the 2008-2009 school year inNorth Carolina and fashion an appropriate visitation schedule. Present—Hurlbutt, J.P.,Centra, Fahey, Peradotto and Pine, JJ.