| Matter of Hills v Madrid |
| 2008 NY Slip Op 09873 [57 AD3d 1175] |
| December 18, 2008 |
| Appellate Division, Third Department |
| In the Matter of Jeffrey S. Hills, Appellant, v Michele C. Madrid,Respondent. (And Another Related Proceeding.) |
—[*1] Clair A. Montroy III, Orchard Park, for respondent. Francisco P. Berry, Law Guardian, Ithaca.
Malone Jr., J. Appeal from an order of the Family Court of Delaware County (Becker, J.), enteredJuly 2, 2007, which, among other things, dismissed petitioner's application, in two proceedings pursuantto Family Ct Act article 6, for modification of a prior order of custody.
Petitioner (hereinafter the father) and respondent (hereinafter the mother), who never married, arethe parents of one child (born in 2000). For the first five years of the child's life, the parties lived indifferent states, at times, and maintained an informal agreement regarding custody and visitation. InOctober 2005, when both parties were living in New York—the father in the Capital District andthe mother in the Town of Sidney, Delaware County—a consent order was entered, pursuant towhich the parties maintained joint legal custody of the child, the mother was awarded primary physicalcustody and the father received visitation each weekend, as well as alternating holidays and birthdays.
In June 2006, the mother relocated with the child to the City of Rochester, Monroe County. As aresult, the father filed a petition to modify the October 2005 custody and visitation order, seeking solelegal custody of the child. The mother then filed a petition, apparently [*2]seeking sole legal custody of the child and approval of her relocation.Following a hearing on the petitions, Family Court awarded the mother sole legal custody of the child,approved her relocation, and modified the parties' prior order regarding visitation. The father nowappeals.
A parent seeking to relocate with a child must demonstrate by a preponderance of the evidencethat the relocation is in the child's best interests. Factors to consider include the parent's reason forseeking a relocation, the other parent's reason for opposing the move, "the impact of the move on thequality and quantity of future contact between the child and the noncustodial parent, and the potentialenhancement of the child's and custodial parent's lives" (Matter of Smith v Hoover, 24 AD3d 1096, 1096-1097 [2005]; seeMatter of Tropea v Tropea, 87 NY2d 727, 740-741 [1996]). Here, according deference toFamily Court's assessment of the credibility of the witnesses and its consideration of the relevantfactors, we are satisfied that the mother established by a preponderance of the evidence that herrelocation to the Rochester area was in the child's best interests (see Matter of Tropea vTropea, 87 NY2d at 741).
The mother testified at the hearing that she and her husband moved to Rochester immediately aftera flood in Delaware County destroyed their rented home, rendering it uninhabitable. In addition, theflood negatively affected her husband's business clients, many of whom were not able to pay on theiraccounts, which created a financial burden for the family. According to the mother, although she wasnot working outside the home at the time of the flood, instead serving as a stay-at-home mother to theparties' child and her child with her husband, she had previously lived and worked in the Rochester areaand, through contacts there, was able to secure employment within her professional field in a matter ofdays. In addition, her husband was able to transfer his business to the Rochester area, although sheadmitted that the business ultimately failed. Moreover, according to the mother, the Rochester areaschool districts and therapists were recommended to her as capable of handling the child's specialeducation and behavioral needs. Indeed, there was no serious dispute at the hearing that the child'semotional well-being was improved when he began treatment with his therapists in Rochester andstarted receiving services at the local school. Accordingly, the record supports the finding that therelocation improved the financial, emotional and educational well-being of the child. Although therelocation inevitably affected the father's ability to see his son during the week, under the currentvisitation schedule set by Family Court, the father will continue to have visitation every other weekendand alternating holidays, and he gained extended visitation with the child during school breaks andsummer vacations. Thus, the father will continue to have regular and meaningful contact with the child.
Based on the circumstances presented here, we cannot say that Family Court erred in concludingthat the mother established that the relocation was in the child's best interests (compare Matter of Paul v Pagnillo, 13AD3d 971 [2004]). However, as conceded by the mother at oral argument of this appeal, theaward of sole legal custody to the mother was not warranted. In addition, the father's petition seekingsole legal custody was considered by Family Court and its determination denying him such relief is fullysupported by the record. As such, and considering that neither party offered evidence that theirrelationship is so acrimonious that joint legal custody is unworkable (see Matter of Goldsmith v Goldsmith, 50AD3d 1190, 1191 [2008]; Matter ofWelch v Welch, 39 AD3d 910, 912 [2007], lv dismissed 9 NY3d 988 [2007]), theparties should continue to share joint legal custody, with primary physical custody with the mother.
Peters, J.P., Rose, Lahtinen and Kane, JJ., concur. Ordered that the order is modified, on the law,without costs, by reversing so much thereof as awarded sole legal custody of the child to respondent;the parties are awarded joint legal custody of the child; and, as so modified, affirmed.