| Matter of Said v Said |
| 2009 NY Slip Op 03182 [61 AD3d 879] |
| April 21, 2009 |
| Appellate Division, Second Department |
| In the Matter of Wahed Said, Respondent, v BrindusaSaid, Appellant. (Proceeding No. 1.) In the Matter of Brindusa Said, Appellant, v Wahed Said,Respondent. (Proceeding No. 2.) |
—[*1] Hoffman & Behar, LLP, Mineola, N.Y. (Alexandra N. Cohen of counsel), for respondent. William A. Sheeckutz, Massapequa, N.Y., attorney for the children.
In related child custody proceedings pursuant to Family Court Act article 6, the motherappeals from an order of the Family Court, Nassau County (C. Singer, J.), dated December 17,2007, which, after a hearing, in effect, granted the father's petition, inter alia, to modify thecustody provisions of a stipulation of settlement which was incorporated but not merged into ajudgment of divorce dated December 8, 1998, awarding her sole custody of the subject children,so as to award him sole custody of the subject children, and denied her petition, among otherthings, for permission to relocate with the subject children to Pennsylvania.
Ordered that the order is reversed, on the facts and in the exercise of discretion, withoutcosts or disbursements, the father's petition is denied, the mother's petition is granted, and thematter is remitted [*2]to the Family Court, Nassau County, forfurther proceedings to establish an appropriate visitation schedule for the father; and it is further,
Ordered that pending further order of the Family Court, Nassau County, the father shall havevisitation on alternate weekends from Friday at 6:00 p.m. until Sunday at 6:00 p.m., or othertimes as the parties may agree, with the mother transporting the children to Liberty State Park forpick-up and drop-off.
Where, as here, parents enter into an agreement concerning custody, that agreement will notbe modified unless there is a sufficient change in circumstances since the time of the stipulation,and unless modification of the custody arrangement is in the best interests of the children (see Matter of Manfredo v Manfredo,53 AD3d 498, 499 [2008]; Matter of Joseph F. v Patricia F., 32 AD3d 938, 938-939 [2006];Matter of Rawlins v Barth, 21AD3d 495 [2005]). In assessing whether a change in circumstances warrants a modificationof the custody arrangement, relevant considerations include whether the change in circumstancesimplicates the fitness of the custodial parent, or affects the nature and quality of the relationshipbetween the children and the noncustodial parent (see Matter of Joseph F. v Patricia F.,32 AD3d at 939).
Custody determinations are ordinarily a matter of discretion for the hearing court, and thecourt's determination will not be set aside on appeal unless it lacks a sound and substantial basisin the record (see Matter of Manfredo v Manfredo, 53 AD3d at 499-500; Matter ofJoseph F. v Patricia F., 32 AD3d at 939). We conclude that the Family Court's determinationto transfer custody of the subject children from the mother to the father is not supported by asound and substantial basis in the record. As the mother and the attorney for the childrencontend, in light of the ages and maturity of the children, their clearly expressed preferences tolive with the mother, although not controlling, are entitled to great weight (see Matter ofManfredo v Manfredo, 53 AD3d at 500). In addition, the evidence at the hearing showedthat the children have been in the custody of the mother for most of their lives, that she is a fitparent, and that the children have thrived in her care (see Eschbach v Eschbach, 56NY2d 167, 171 [1982]). Furthermore, although the Family Court expressed a concern that themother and her fiancÉ had, and would continue to, "undermine[ ]" the father's relationshipwith the children, the evidence showed that the mother and her fiancÉ fostered the father'svisitation with the children, who enjoyed a good relationship with the father.
The court's determination to deny the mother permission to relocate with the children toPennsylvania also lacks a sound and substantial basis in the record and, thus, cannot be upheld.Although each custodial parent's request for relocation must be decided on its own merits, thefactors to be considered include, but are not limited to, each parent's reasons for seeking oropposing the move, the quality of the relationships between the children and each parent, theimpact of the move on the quantity and quality of the children's future contact with thenoncustodial parent, the degree to which the lives of the custodial parent and the children may beenhanced economically, emotionally, and educationally by the move, and the feasibility ofpreserving the relationship between the noncustodial parent and the children through suitablevisitation arrangements (see Matter of Tropea v Tropea, 87 NY2d 727, 738-739 [1996]).Upon weighing these factors, we find that the mother established that the children's best interestswould be served by permitting the relocation, which will, among other things, still permit thechildren to have a meaningful relationship with the father (see Matter of Cooke v Alaimo, 44 AD3d 655 [2007]; Matter of Wisloh-Silverman v Dono,39 AD3d 555, 556-557 [2007]; Matter of Vega v Pollack, 21 AD3d 495, 497 [2005]). Mastro, J.P.,Dillon, Covello and Dickerson, JJ., concur.