| Malcolm v Jurow-Malcolm |
| 2009 NY Slip Op 04337 [63 AD3d 1254] |
| June 4, 2009 |
| Appellate Division, Third Department |
| Scott J. Malcolm, Appellant, v Ru P. Jurow-Malcolm,Respondent. |
—[*1] John A. Della Ratta, Schenectady, for respondent. Karen R. Crandall, Law Guardian, Schenectady.
Peters, J. Appeal from an order of the Supreme Court (Drago, J.), entered October 16, 2008in Schenectady County, which, among other things, permitted defendant to relocate with theparties' children to Suffolk County.
Plaintiff (hereinafter the father) and defendant (hereinafter the mother) were married in 1998and are the parents of two children (born in 2002 and 2003). The father also has a daughter froma prior relationship who resided with the parties for part of each week. In January 2007, thefather commenced an action for divorce and also moved, by order to show cause, for jointphysical custody of the two children and to preclude the mother from relocating to SuffolkCounty. The mother moved for pendente lite relief in the form of, among other things, solecustody of the children and exclusive possession of the marital residence in Schenectady County.Supreme Court granted the mother's request but ordered that the father have visitation onalternating weekends and be permitted use of the marital residence during that time. Shortlythereafter, in March 2007, the marital home was sold but the proceeds were not disbursed due tothe parties' disagreement as to how they should be distributed. The mother, with neither a placeto live nor funds to obtain suitable housing in the Schenectady County area, relocated with hertwo children to Suffolk County to live with their maternal grandparents. Following a nine-dayhearing, Supreme Court awarded the mother sole custody of the children, determined that herrelocation to Suffolk County would be in the best interests of the children and awarded the father[*2]liberal visitation. The father now appeals, arguing only thatSupreme Court abused its discretion in permitting the mother to relocate to Suffolk County withthe two children.
Initially, we note that a strict application of the factors set forth in Matter of Tropea vTropea (87 NY2d 727 [1996]) is not required because this matter involves an initial custodydetermination (see Matter of Streid vStreid, 46 AD3d 1155, 1156 [2007]; Furman v Furman, 298 AD2d 627,628-629 [2002], lv dismissed and denied 99 NY2d 575 [2003]). Nevertheless, a parent'sdecision to relocate is a pertinent factor to be considered in determining the best interests of thechildren (see Barney v Barney, 301 AD2d 950, 951 [2003]; Osborne v Osborne,266 AD2d 765, 767-768 [1999]; Matter of Buell v Buell, 258 AD2d 709, 709 [1999]).Other factors to be taken into account include "the ages of the children, the quality of the homeenvironment of each parent, the relative fitness of each parent, the ability of each parent to guideand provide for the children's intellectual and emotional development, and the effect of thecustody award on the children's relationship with the noncustodial parent" (Matter of Storchv Storch, 282 AD2d 845, 846 [2001], lv denied 96 NY2d 718 [2001]; see Matterof Streid v Streid, 46 AD3d at 1156). We find that Supreme Court's decision to award themother sole custody and permit relocation to Suffolk County has a sound and substantial basis inthe record which promotes the children's best interests (see Furman v Furman, 298 AD2dat 628; Osborne v Osborne, 266 AD2d at 768).
The evidence demonstrated that the mother has at all times served as the primary caregiverto these young children and has displayed a continued commitment to their needs. Astay-at-home mother since the children's birth, she assumed nearly all of the parentalresponsibilities and day-to-day activities with the children, both during the father's long-termstruggle with alcohol and drug dependency and also when he pursued his own recreationalinterests. As detailed in Supreme Court's decision, the father's history of alcohol and substanceabuse predated the parties' relationship and permeated their marriage. He admitted to abusingalcohol on a daily basis during the first three years of the parties' marriage and, despite attemptsat rehabilitation, relapsed on a number of occasions. Further, he admitted to frequently placinghis own interests above those of his children, such as growing and smoking marihuana in thehome, participating in various musical groups which, on at least one occasion, contributed to hisrelapse with alcohol, and wearing earplugs at night so that he would not be awoken by hischildren crying. On one occasion, the mother came home to find her son screaming in the cribwhile the father lay unconscious on the bed, unable to be roused, after passing out from drinkingalcohol. While the record reveals that the father is a fit parent when sober and that his significantstrides towards drug and alcohol rehabilitation, if maintained, will likely allow him to improvethe relationship he has with the children, Supreme Court found, and we agree, that an award ofcustody to the father at this time would be premature given his history of relapses, the mostrecent of which occurred just months prior to the parties' separation.[FN*]Moreover, since the extended family of both the father and mother reside in Suffolk County,were the father to relapse, no family member would be available to assume the children's care.[*3]
Supreme Court also properly considered the mother'srelocation as "a very important factor" in arriving at its best interests determination (Osbornev Osborne, 266 AD2d at 767; see Matter of Siler v Siler, 293 AD2d 826, 828 [2002],appeals dismissed 98 NY2d 691, 720 [2002]). Despite the father's assertions to thecontrary, the mother's move to Suffolk County was not motivated by bad faith but, rather, anopportunity to reside in close proximity to supportive family members and to secure flexibleemployment (see Matter of Spencer v Small, 263 AD2d 783, 785 [1999]; Matter ofBuell v Buell, 258 AD2d at 710). The mother testified as to her unsuccessful attempts atobtaining employment in the Schenectady County area and that she recently securedemployment in Suffolk County earning over $50,000 per year in her field of graphic design. Thisallowed her to move the children out of their grandparent's residence and into a suitableapartment. Testimony also revealed that the children were adapting well to their newsurroundings, enjoy a close bond with their maternal grandparents, who live in close proximityand are available to assist with childcare, and were performing well in one of the higher rankingschools in the state.
Although the mother's relocation will inevitably impact the father's ability to spend time withhis children, as previously noted, all of the father's extended family resides in Suffolk Countyand the parties frequently traveled there with the children to visit their respective families priorto their separation. Moreover, under the visitation schedule crafted by Supreme Court, the fatherwill have visitation every other weekend (one in Schenectady County and one in SuffolkCounty), with the option of an additional weekend in Suffolk County, on alternate holidays andFather's Day, during the children's winter recess and for four weeks during the summer. Thus,the father will continue to have frequent and meaningful periods of visitation with the children(see Matter of Hills v Madrid, 57AD3d 1175, 1177 [2008]; Matter of Bodrato v Biggs, 274 AD2d 694, 696 [2000];compare Matter of Mallory vJackson, 51 AD3d 1088, 1090 [2008], lv denied 11 NY3d 705 [2008]). Suchvisitation will further allow the children to spend meaningful time with their half sister, withwhom they have a good relationship. Under the totality of the circumstances herein, we findample support for Supreme Court's finding that the children's best interests will be served by anaward of sole custody to the mother in Suffolk County.
Cardona, P.J., Lahtinen, Kane and Garry, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *: We disagree with the father'sassertion that Supreme Court placed undue importance on his prior alcohol abuse in decidingwhat was in the children's best interests, and note that "[i]t is for the court to decide whatimportance is to be attributed to the evidence presented and, unless that evaluation lacks a soundand substantial basis, this Court will not disturb it" (Matter of Wentland v Rousseau, 59 AD3d 821, 823 [2009]).