| Matter of Mallory v Jackson |
| 2008 NY Slip Op 04017 [51 AD3d 1088] |
| May 1, 2008 |
| Appellate Division, Third Department |
| In the Matter of Monica Mallory, Appellant, v Brady Jackson Jr.,Respondent. (And Another Related Proceeding.) |
—[*1] Milinda J. Reed, Lansingburg, for respondent. Brian DeLaFleur, Law Guardian, Schenectady.
Kavanagh, J. Appeal from an order of the Family Court of Schenectady County (Powers, J.),entered July 20, 2007, which dismissed petitioner's application, in two proceedings pursuant toFamily Ct Act article 6, to modify a prior order of custody.
Petitioner (hereinafter the mother) and respondent (hereinafter the father) have two daughters(born in 2003 and 2004). Upon agreement of the parties, a modified order was entered in June2006 which granted the parties joint legal custody of the two children, with physical custody tothe mother. In October 2006, just four months later, the mother brought the instant petitionseeking permission to relocate the children to North Carolina. While the petition was pending,the mother moved to North Carolina, leaving the children with the father at his mother's home inSchenectady County. In response, the father filed a petition to modify the custody and visitationorder, seeking sole custody of both children. The mother then filed an amended petition whichsupplemented her original relocation petition. Family Court held a hearing and, at the completionof the mother's testimony, granted the father's motion to dismiss the mother's [*2]petition.[FN*]The mother appeals and we affirm.
In support of her petition to move the children to North Carolina, the mother was required todemonstrate by a preponderance of the evidence that the proposed relocation would be in thechildren's best interests (see Matter of Tropea v Tropea, 87 NY2d 727, 742 [1996]; Matter of Gutiy v Gutiy, 40 AD3d1155, 1156 [2007]; Matter of Winnv Cutting, 39 AD3d 1000, 1001 [2007]; Matter of Armstrong v Crout, 33 AD3d 1079, 1079-1080 [2006]).The mother stated that, throughout their relationship, the father had failed to provide her withfinancial support and that part of her motivation in moving to North Carolina with the childrenwas to be near a relative who had offered her financial assistance. However, the mother, who hadalready relocated, failed to present any evidence at the hearing that her financial situation inNorth Carolina was significantly better than it had been while she lived in New York. Forexample, while her rent was $50 less per month, she and the two children would be forced to livetogether in a single room in the relative's home in North Carolina. In addition, she admitted toearning less money while employed in North Carolina than she had earned while living in NewYork, and she conceded that, with the exception of the one relative, the remainder of herextended family and other relatives continued to reside in New York.
In determining whether relocation is in the best interest of the child, factors to be taken intoconsideration include " 'each parent's reason for moving or opposing the move, the relationshipbetween the child[ren] and each parent, the impact of the move on the quality and quantity offuture contact between the child[ren] and the noncustodial parent, and the potential enhancementof the child[ren]'s and custodial parent's lives' " (Matter of Armstrong v Crout, 33 AD3dat 1080, quoting Matter of Smith vHoover, 24 AD3d 1096, 1096-1097 [2005]; see Matter of Tropea v Tropea, 87NY2d at 741). In general, Family Court's "findings and determinations on these issues. . . will not be disturbed on appeal if supported by a sound and substantial basis inthe record" (Matter of Gutiy v Gutiy, 40 AD3d at 1156). The mother's concerns about thefather's use of drugs as well as his abuse of her during their relationship must be viewed incontrast to her decision to leave the children in his care for a prolonged period of time while shemoved to North Carolina. In addition, relocation to North Carolina would undoubtedly deprivethe children of any meaningful contact with their father as well as other members of theirextended family, all of whom, as previously noted, continue to live in New York (see Matter of Streid v Streid, 46 AD3d1155, 1156 [2007]).
Given these findings, and the mother's failure to establish the existence of a compelling needjustifying the relocation of the children to North Carolina (see Matter of Meier v Key-Meier, 36 AD3d 1001, 1003 [2007]), wefind that Family Court's determination that this move was not in the children's best interests issupported by a sound and substantial basis in the record (see Matter of Gutiy v Gutiy, 40AD3d at 1156; Matter of Meier v Key-Meier, 36 AD3d at 1003-1004).
Mercure, J.P., Peters, Kane and Stein, JJ., concur. Ordered that the order is affirmed, withoutcosts.
Footnote *: The parties then reached acustody agreement which provided joint custody of the children, with physical custody to thefather.