| Matter of Bobroff v Farwell |
| 2008 NY Slip Op 10094 [57 AD3d 1284] |
| December 24, 2008 |
| Appellate Division, Third Department |
| In the Matter of Ilana B. Bobroff, Appellant, v Gary H. Farwell Jr.,Respondent. (And Another Related Proceeding.) |
—[*1] Kevin P. Flynn, Elmira, for respondent. Dorothy K. Stevens, Law Guardian, Elmira.
Kavanagh, J. Appeal from an order of the Family Court of Chemung County (Brockway, J.),entered October 9, 2007, which, among other things, dismissed petitioner's application, in a proceedingpursuant to Family Ct Act article 6, to modify a prior order of custody.
Petitioner (hereinafter the mother) and respondent (hereinafter the father) were married in 1995and have two children (born in 1995 and 1998). In 2005, the parties entered into a separationagreement that provided for joint custody of the children, with the father having physical custody andthe mother having liberal parenting time. The agreement specifically provided that the children could notbe moved from their current school district in the Village of Horseheads, Chemung County, without theconsent of both parents or by an order authorizing such a move by Family Court. In May 2007, adivorce judgment was issued that incorporated, but did not merge with, the separation agreement.Three weeks after the divorce judgment was entered, the mother commenced the first of theseproceedings by filing a Family Ct Act article 6 petition seeking a modification of the custodialarrangement and an award giving her physical custody of the children. The mother claimed that such achange was justified primarily by the fact that the father, without her consent or court approval, hadmade arrangements to move the children to the City of Corning, Steuben County, and enroll them in aschool district there. The [*2]father then filed a petition seeking thecourt's permission for such a move. After a hearing, Family Court dismissed the mother's petition andgranted the father's petition permitting him to relocate with the children. The mother now appeals.
We affirm. The mother failed to establish that the relocation of the children to Corning representeda substantial change of circumstances warranting a modification of the existing custodial arrangement(see Matter of Scialdo v Cook, 53AD3d 1090, 1091 [2008]; compareMatter of Robertson v Robertson, 40 AD3d 1219, 1220 [2007]). In 2005, prior to theexecution of the separation agreement, the mother left the marital home and moved to the City ofIthaca, Tompkins County. Allowing the father to relocate to Corning would only add 12 miles to thedistance that the mother now has to travel to visit with the children, and the father agreed that he wouldhelp with the additional transportation when possible. Standing alone, this change in the location of thechildren's residence is not a circumstance which would warrant a modification in the custodialarrangement as previously agreed to by the parties.
The mother also alleged that the father has substantially interferred with her time with the childrenby enrolling them in extracurricular activities that often resulted in the children returning to her home lateon school nights. However, the children have been involved in similar activities for many years, includingthe period of time when the parties entered into their separation agreement and made theirarrangements as to the children's custody.
As for Family Court's decision to allow the father to relocate with the children, the father wasrequired to demonstrate by a preponderance of the evidence that the proposed move to Corning was inthe children's best interests (see Matter of Tropea v Tropea, 87 NY2d 727, 741 [1996]; Matter of Cree v Terrance, 55 AD3d964, 967 [2008]; Matter of Brown vBrown, 52 AD3d 903, 904 [2008]). Among the factors to be considered was the impactsuch a move would have " 'on the quality and quantity of future contact between the child and thenoncustodial parent, and the potential enhancement of the child's and custodial parent's lives' " (Matter of Armstrong v Crout, 33 AD3d1079, 1080 [2006], quoting Matter ofSmith v Hoover, 24 AD3d 1096, 1096-1097 [2005]). The father remarried and soughtpermission to relocate with his children so that he could live with his new wife and her children in herhome in Corning. Such a consolidation of homestead expenses would have obvious economic benefits,and given the positive relationship that has developed between the children and the stepmother and herchildren, living in a single-family unit would clearly be in their best interests. Moreover, while the parties'separation agreement did state a preference for the school district in Horseheads, there is no evidencein the record to support the conclusion that the educational opportunities that district offers are superiorto those offered by the school district in Corning, "or that the children's lives would be enhancededucationally by remaining within the [Horseheads] school system" (Carlson v Carlson, 248AD2d 1026, 1028 [1998]; see Matter of Tropea v Tropea, 87 NY2d at 740; Matter ofGrathwol v Grathwol, 285 AD2d 957, 960 [2001]). Accordingly, we defer to Family Court'sdetermination that the proposed move to Corning was, under all of the circumstances, in the children'sbest interests (see Matter of Tropea v Tropea, 87 NY2d at 740-741; Matter of Winn v Cutting, 39 AD3d1000, 1002 [2007]).
Finally, the mother's claims that Family Court mischaracterized her testimony are belied by therecord and we see no reason to disturb the court's credibility determinations (see Matter of Gravelding v Loper, 42 AD3d740, 742 [2007]; Matter of Anson vAnson, 20 AD3d 603, 604 [2005], lv denied 5 NY3d 711 [2005]). In short, we seeno reason to disturb Family Court's order.[*3]
Peters, J.P., Spain, Lahtinen and Kane, JJ., concur. Orderedthat the order is affirmed, without costs.