| Matter of Wirth v Wirth |
| 2008 NY Slip Op 09409 [56 AD3d 787] |
| November 25, 2008 |
| Appellate Division, Second Department |
| In the Matter of Kaisha Roman Wirth,Appellant-Respondent, v Adam Wirth, Respondent-Appellant. (Proceeding No. 1.) Inthe Matter of Adam Wirth, Respondent-Appellant, v Kaisha Roman Wirth,Appellant-Respondent. (Proceeding No. 2.) |
—[*1] Kurtzberg & Kurtzberg, P.C., Melville, N.Y. (Linda A. Kurtzberg of counsel), forrespondent-appellant. Jennifer Marin, Central Islip, N.Y. (Diane B. Groom of counsel), attorney for thechild.
In related child custody proceedings pursuant to Family Court Act article 6, the motherappeals, as limited by her brief, from so much of an order of the Family Court, Suffolk County(Tarantino, Jr., J.), dated August 20, 2007, as, after a hearing, denied those branches of herpetition which were to modify a prior custody order of the same court (MacKenzie, J.), datedDecember 2005, awarding the parties joint custody of their child, so as to award her sole custodyof the child and permit her to relocate with the child to Florida, and the father cross-appeals, aslimited by his brief, from stated portions of the same order dated August 20, 2007, which, interalia, denied that branch of his petition which was to modify the prior custody order datedDecember 2005, so as to award him sole custody of the child.
Ordered that the order dated August 20, 2007, is modified, on the law, by deleting the [*2]provisions thereof denying those branches of the mother's petitionwhich were to modify the prior custody order dated December 2005, so as to award her solecustody of the subject child and permit her to relocate with the child to Florida and substitutingtherefor provisions granting those branches of the mother's petition; as so modified, the orderdated August 20, 2007, is affirmed, with costs to the mother, the prior custody order datedDecember 2005, is modified accordingly, and the matter is remitted to the Family Court, SuffolkCounty, for further proceedings in accordance herewith.
Where, as here, an order of custody is entered on stipulation, a court cannot modify the orderunless a sufficient change of circumstances, since the time of the stipulation, is established, andthen only when a modification would be in the best interests of the child (see Matter ofScialdo v Cook, 53 AD3d 1090, 1090 [2008]). The record establishes such a sufficientchange of circumstances here, based on the mother's inability to meet her expenses after movingfrom the marital residence with the subject child. Moreover, given the totality of thecircumstances herein, an award of custody to the mother would be in the child's best interests.
Contrary to the Family Court's determination, the mother established by a preponderance ofthe evidence that the proposed relocation to Florida was in the subject child's best interests(see Matter of Tropea v Tropea, 87 NY2d 727, 740-741 [1996]). "[E]conomic necessity. . . may present a particularly persuasive ground for permitting the proposed move"(id. at 739). The mother amply demonstrated that, even if she were to obtain full-timeemployment at a salary commensurate with her prior employment, she could not afford both anapartment and daycare on Long Island, where the father resides. Accordingly, the Family Courtshould have granted her permission to relocate (see Miller v Pipia, 297 AD2d 362, 366[2002]).
We remit this matter to the Family Court for determination of an appropriate postrelocationvisitation schedule that provides liberal visitation for the father, inter alia, on holidays, duringschool recesses, and during summer vacations, but reserves some holidays and summer vacationdays for the mother (see Matter of Nikolic v Ingrassia, 47 AD3d 819, 821-822 [2008]).
In light of our determination, we need not address the father's remaining contention. Mastro,J.P., Rivera, Covello and Leventhal, JJ., concur.